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Colonial Cases

Benjamin v. Wainewright, 1888


Benjamin v. Wainewright

Supreme Court for China and Japan
Mowat ACJ, 23 May 1888
Source: North China Herald, 26 May 1888

Shanghai, 23rd May 1888
Before R. A. Mowat, Esq., Acting Chief Justice.
  Mr. H. S. Wilkinson for the plaintiff.
  Mr. Wainewright defended in person.
  Counsel for the plaintiff said that before going into the case, which was a trial of issue between Luna Benjamin and Robert Ernest Wainewright and in which a garnishee order, Luna Benjamin was directed to be plaintiff, and Robert Ernest Wainewright defendant, he might mention that he had been waited upon by a deputation of persons who had subscribed for the aid of his client, who represented that it would injure her very much if the case was heard in open Court.  He might also say that the plaintiff personally had no desire, except to have the issue tried in open court, and it was a matter of utter indifference to her whether it was heard in open Court or Chambers.  If it was unavoidable to have the case heard in open court, and if at any time during its hearing it was decided to hear it in Chambers his client would offer no objection.  He might further say that the deputation had nothing whatever to do with the defendant, but were a number of the subscribers for Mrs. Benjamin and her own friends.
  Mr. Wainewright - I strongly object to have it heard in Chambers.
  The hearing of the case was then proceeded with.
  Mr. Wilkinson in opening the case said the following were the issues directed to be prepared and tried under the garnishee order. Mrs. Benjamin had obtained a judgment against her husband, Benjamin David Benjamin, and she also obtained a garnishee order against the present defendant to show cause why he should not pay over to her the amount in which her husband was indebted to her, alleging that the defendant was indebted to her husband.  The amount which she stated was owed by her late husband to her was Tls. 2,331.40, and the issues now to be tried were first.
  Whether the said Robert Ernest Wainewright was on the 29th day of December 1887 indebted to Benjamin David Benjamin.
  On that issue the plaintiff alleged the affirmative and the defendant the negative.
  The second issue was:-
  Whether the said Robert Ernest Wainewright was on the 28th day of December 1887 accountable to Benjamin David Benjamin for monies received by h said Robert Ernest Wainewright as solicitor for the said Benjamin David Benjamin on account of fees and disbursements or otherwise.
  On that issue the plaintiff also alleged the affirmative and the defendant the negative, but he (counsel) understood from what had since transpired that the defendant admitted the affirmative in that issue.
  M. Wainwright said that what he admitted with reference to that issue, was that he had received a sum of money on account of Mr. Benjamin and that he was accountable to him for a portion, and only a portion of it.  He admitted that he received this sum of money on the 19th October, 1885, but he did not admit the issue.
  The fact which he would show was that he received the sum of Tls. 45,000, and Tls. 25,000 of that was his own money under an arrangement with Mr. Benjamin.  The balance of Tls. 20,000 he admitted that he was bound to account to Mr. Benjamin for.  There never had been a statement of accounts, but Mr. Benjamin knew very well how the money was spent, and it had been accounted for to him over and over again as a matter of fact; he (defendant) had handed a statement of account, showing how the money was dealt with, to the legal adviser of Mrs. Benjamin, but long before that Mr. Benjamin was well aware how the money was spent.
.  .  .  
Hearing of this case was resumed at 10 o'clock this morning.
.  .  .  
His Lordship adjourned the further hearing of the case till Wednesday morning at 10 o'clock.


Source: North China Herald, 1 June 1888

Shanghai, 30th May.
Before R. A. Mowat, Esq., Acting Chief Justice.
The examination of Mr. Wainwright was resumed at 10 a.m.
.  .  .  
  The further hearing of the case was then adjourned till Monday morning.

Source: North China Herald, 9 June 1888

.  .  .  
  Hs Lordship said he would consider the issues and the cases cited both the authority, and decide upon the legal points upon which would depend whether it would be necessary to call further evidence.
  The date of the decision was not named.
  The Court then adjourned.


Source: North China Herald, 15 June 1888

Shanghai, 13th June.
Before R. A. Mowat, Esq., Acting Chief Justice.
.  .  .  
Mr. Wainewright said that he had very short notice of his lordship's intention to deliver judgment, in fact it was only by chance that he heard at 10 minutes to 4, that judgment would be delivered at 4 o'clock.
  His Lordship said it was intended to wait some time for him.
  His Lordship, in delivering Judgment, said:--
  The plaintiff in this case is the widow of Benjamin David Benjamin, recently deceased. The defendant has been a Solicitor of this Court since 1872.  One of his clients was Benjamin, for whom he began to act in May 1877, and for whom he continued to act practically until Benjamin's death on the 9th January last.
  In February 1885 the plaintiff obtained a decree of judicial separation from her husband, together with an order directing him to pay her by way of alimony the sum of Tls. 150 monthly, and the costs of the proceedings. On the 28th December, 1887, she filed an affidavit, alleging that on that date there was due to her under the order the sum of Tls. 2,331.40 - an allegation that is not disputed - and alleging further that, as she was informed by her husband and believed, the defendant was indebted to him in more than that amount.  Upon this the usual garnishee order was made, attaching all debts due or accruing due from the defendant as garnishee to Benjamin and a subsequent order directed that the judgment creditors and the garnishee should proceed to the trial of issues wherein the judgment creditor should be plaintiff and the garnishee defendant, and that the question to be tried thereon should be whether the garnishee was indebted to the judgment debtor on the 28th December, 1887. [Issues follow in detail.]
.  .  .   When these sums are added together, there is left, out of the Tls. 25,000, more than the amount due to the judgment creditor.
Mr. Wilkinson moved for judgment for the amount claimed.
  Mr. Wainewright said that considering the very short notice he ought to have a little time before final judgment was pronounced.
  His Lordship - Certainly.  There is no hurry I take it.
  Mr. Wilkinson said he only made the application because he thought it might be convenient for the court; but he was quite prepared to accede to Mr. Wainewright's application.
Mr. Wainewright said he thought it might be deferred till Monday, if that would be convenient to the Court.
  His Lordship said he thought there was something down for hearing on Monday.
  Mr. Wilkinson said he was happy to inform his lordship that the case referred to had been settled.
  His Lordship - Then let it be on Monday, in Chambers.
  Mr. Wainewright said he did not care where it was, but he thought it might as well be in open Court.
  His Lordship expressed his assent, and the Court rose.


Source: North China Herald, 23 June 1888

Shanghai, 18th June.
Before R. A. Mowat, Esq., Acting Chief Justice.
.  .  .  
On his Lordship taking his seat this morning,
  Counsel for the plaintiff said - The application which I have now to make to your Lordship is that there should be judgment given in Mrs. Benjamin's favour for the sum of Tls. 2,331.40, together with the costs of the proceedings to be taxed.  There are in effect two sets of proceedings before the court.  There is the set of proceedings in which Mrs. Benjamin is judgment creditor, Mr. Benjamin judgment debtor, and Mr. Wainewright garnishee.  In these proceedings the issues were directed to be tried and the first thing I have to ask is that there should be a final order upon the issues.  The learned counsel then read a draft written by Mr. Wainewright of the terms of the order and also a draft of the order prepared by himself, both being practically the same, namely that judgment  be entered for the sum named with costs.
 Continuing he said - In the final order I have followed the rules given in the Judicature Act.  It is understood, however, that the word "forthwith," as in other cases would not preclude Mr. Wainewright from appealing and having time to appeal.  That is my application, my Lord.  Mr. Wainewright has pointed out that he would not be bound to pay the costs in the original affidavit, and the order of nisi.
  His Lordship - When was the original order given?
  Mr. Wilkinson said it was given on the 28th December, and added that he understood that his application was not opposed.
  Mr. Wainewright implied his assent.
  His Lordship said it did not seem, to him that there was any necessity for two orders; the one last read seemed to recite everything required.
  Mr. Wilkinson said that the exact form of the order could be settled afterwards.
  His Lordship - Then the application is unopposed.
  M. Wainewright signified his assent.
  The final order for the sum of Tls. 2,331.40 with costs was then granted.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School