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PERLUBIE INSOL-
VENCY.
Appeal to Full Court.
Was There Bona-fide Debt?
In the Full Court on Tuesday, before
their Honors the Chief Justice, Mr. Justice-
Gordon, and Kir. Justice Somburg, an appeal
was beard against tbe judgment of
Mr. Commissioner Russell, (dverfl in the
Adelaide Insolvency Court recently,
whereby Albert John Thomas, late of -Perlubie,
Streaky Bay, agent, now of TVnte
street, North Adelaide, was ordered six
months' imprisonment "for grossly dia-i
honest conduct toward John Darling and
Son." The notice of appeal expressed dissatisfaction
(a) with the determination of
the lower Court that the insolvent had
fraudulently made away with an order, for
£152 3/7, dated December 22, 1908, drawn
by Charles Batt Beck oil Messrs. George
Wills & Co., Adelaide, by delivering it to
his wife, Emily Rachael Thomas; (b) with
the order for imprisonment;' (c) with the
order that the second-class certificate
awarded be suspended for 12 months. Mr.
Ingleby appeared for the appellant, • and
Mr. R. H. Latblean (instructed by M^srs.
Bakewell, Stow, & Piper) for tie trustees,
who filed a cros-appeal on charges which
Mr. Commissioner Rnsseil had dismissed.
The major question was whether there hsul"
been a bona-fide debt, as insolvent ' bad
alleged, in respect of which he had paid the
money to his wife.
Mr. Ingleby read the judgment of the
lower Court.
The Chief Justice—Tbe account '.impresses
me very much as it impressed the
Commissioner—an impudent fraud that the
assets should belong to the wife and the
debts to the husband. "
Mr. Ingleby urged that suspicion was all
the other side had to go on, and that was
what the Commissioner had decided on as
against the direct evidence of his clients
He contended that tbe insolvent had been
perfectly honest and aboveboard in every
transaction, and that any Court wfaich approached
the case with that view would
arrive at Hie opposite conclusion to the
Commissioner's. Insolvent's wife went to
Perlubie from Victoria in 1905, and bad is
her possession £140, which represented th«
proceeds of the sale of a boanfing bouse.
The Chief Justice—Was there any independent
evidence on that. •
Mr. Latblean—No.
The Chief Justice—Then it would be
competent for the CommisHioner to sav
he disbelieved it. How did she bring it
over?
Mr. Ingleby—She brought it in grid and
notes.
Tbe Chief Justice—The story is not inherently.
improbable. A man lni|llrt. roflilTV
for money. Scone marry for love and
some for money. She might have bnwriit
in over, but it is important to know
if it
is corroborated.
Mr. Justice Homburg—The porcbaser of
the boarding house could have come -along
The Chief Justice—But he would not
come unless his expenses were paid.
Mr. Ingleby said Mrs. Thomas lent the
insolvent money, and he used it to get in
his harvest in 1905. In 1906 he had wheat
and sold a quantity of it to repay her £40
of the loan.
Mr. Lathlean—We can find no evidence
of any loan.
Mr. Justice Gordon—Tie onus is on yor
to prove there was a loan.
Mr. Lathlean—Oh, no.
Mr! Justice Gordon—Yes it ib. It is a
punishable offence.
Mr. Lathlean—If the insolvent makes an
excuse which is not retasonablp, there is
no onus on us.
Mr. Justice Gordon—It is a fundamental
principle of British law that if you want
to send a man to gaol, the onus is on
you, unless the Act says otherwise. Does
the Act say anything to the contrary?
Mr. Lathlean—There is nothing about
that in the Act.
Mr. Justice Gordon—Then the onus is
on you. It is rubbish to talk otherwise.
Mr. Justice Homburg—This is a direct
charge, and you have to prove it.
Mr. Lathlean—We can prove it. We
asked them about it, and showed that his
and bis wife's statements were so contradictory
that the Court could not accept
them. That leaves the. £152 still to be accounted
for.
Mr. Justice Homburg—Then tbe "thing to
do is to withdraw his protection- and adjourn
the hearing sine die, not to send bim
to gaol for a specific term. This is a direct
charge preferred by the trustees, and is
not the obligation on the trustees to prove
it? . ..
Mr. Lathlean—'We say that this was tbe
insolvent's money, and that he contemplated
insolvency, and. instead of allowing
the money to flow through the proper
channels provided by law, he diverted it,
and gave it to some one else—we say to
whom he owed nothing.
Air. Justice Gordon—That onus is on -
you.
Mr. Lathlean—Yes; but we cocdd never,-,
get witnesses to prove it. if the husband
and wife were alone wben the transaction
was alleged to have been made.
The Chief Justice—I do not think yrm
can say that because be paid the money
into his wife's account that would be inak- -
n.
ing away with it. This account was used
as his business aooount?
Mr. Lathlean—Yes. ,
The Chief Justice—Is there anything
paid away on her behalf?
.'
Mr. Latblean—Scarcely anything. ThRp- •
say the account was in her namp. ;
uw»d for his convenience.
V
Thc Chief Justice—I agree tbet the omig
is upon you. but it shifts if .you sbow-thal
this account, although .in Iter name, vat
his business acconnt. . - . '.
Mr. Latblean—Yes, and that has a aerf
bearing as to whether there was any loaS
between husband and wife."
Mr. Ingleby—Then there would be »
making away.
Mr. Lathlean pointed out that ibe only -
cheque in tbe Pyyiuiw Bank acooont was
the one for £152, and that was lod^ed 10
days after the BBnunoas bad^b^j^gpjrfeL 1
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