Supreme Court.

Taranaki Daily News, Volume XLVII, Issue 784, 30 March 1905, Page 2

Supreme Court.

BANKRUPTCY APPEAL CASE. JUDGMENT OF MR JUSTICE EDWARDS. Mary Burke, appellant, v. The Official Assignee, in Bankruptcy of the property of Amin Burke, Respondent.

Appeal from order ol Deputy District Judge under .Section 77 (b), of tiie Bankruptcy Act, 1892. Mr D. Hutchen for appellant, Air (Juilliam for respondent.

—Judgment.— 'litis is an appeal umler the Dank ruptcy Act, 1892, from un ordei made by Mr Kenny, Deputy District for Turunaki, under Stctioi. 77 (t)() of the Act, iwhmlQ' if is ordored aiid declared Unit) it is nsrertained that the sum of £225 ha.' been expended and paid on l;ehalf o! the bankrupt, Amin Burke, in the purchase of Section No. (>B, in the Onmtii DisLrict in Tarunaki, in thu name and on behalf of the appellant, and thu appellant was ordered to pay to the respondent that sum not later than HKh of January last. The evidence adduced on behalf ol

the respondent before the District Court was that of Mr G'erard, ollicial assignee in bankruptcy, (he bankrupt, (iypran Hannah, the principal and practically the only creditor in the bankruptcy, n7id Air Medley, the deputy assignee. The. Oflicial Assignee and his deputy simply speak to the result of their investigations into the bankrupt's affairs, from which, it appears that as the result of the •bankrupt's trading for a year ant nine months there was a .considerable deficiency in his assets on th< realisation of his estate. The bankrupt's accounts, however, hove beer so kept, that it is iuipossib!< to sny whether any, arid if so what sum remains unaccounted foi after discharging the legitimate expenses of the bankrupt's business am the maintenance of his family. Tin books do not show the expend ilnr< ; of any money in the purchase or lane i in respect of which the order was . made by the District Court. The tv 1 ideirce of <Jypran Hannah was riiree- . ted to his transactions with the bankrupt, and to the prolit which h< considered that Iho bankrupt ought to have made in his business. Tin evidence of the bankrupt is that h< did not spend any moneys whatever in the purchase of land in respect o which the order was made. The evidence adduced by the appellant was her own, and that of Joseph Say e;»h, an interpreter, of her son Jnhr lltirke. and of Mr White, Mr Ikllringcr, Mr Hurle, and Mr TiinJVrtdge. 'IM\. evidence of the appellant is that she possessed funds of her own, and that she bought the land in Question wilt those funds. Jn support of this evidence certain documents in Arabic relating to lands in Syria forinerlj owned hv the nnnelbint. were urndnr

Ed and sworn to by the appellant. Tho interpreter, Snyegh, verifies the translations of tires* documents. Tho evidence of .John llurke corroborates tho evidence given by the bankrupt and by the appellant. The evidence of the other witnesses is not material.

The matter is one which- is clouded by suspicion, but thnv is no evidence whatever that any monies were supplied by the bankrupt for the purchase of the land, us found by the Deputy District Judge. On the contrary the direct vvidenou of the witnesses called for both parties is that no such moneys were supplied by the bankrupt. The Deputy District Judge held that the evidence was such as to cast upon the appellant the burden of proof that she had purchused the land with her own money, and that iShe had not discharged it. In sup-

port of this ruling he relied upon the case of In re Hodd 7, N.Z.1..R. (S.c.) 337. In that case 'the bankrupt had made over to his wife the whole of his property, real and personal, for an ullegod consideration in money, for which he was unable to account. Mr Justice Denniston in

giving his judgment, refusing to (lis- ' miss the motion without calling upon respondent for an answer, observed : "All the circumstances attending this transaction are in the bosoms of the parties to it. It is almost impossible for the plaintiff to prove a negative ; it is, or should be. the simplest task for the defendant to prove the affirmative. This has always been held a ground, if not for s-hiiftinß the onus of proof, at least for greatly modifying the weight of evidence required to shift the onus. The statements of the defendant and her husband and the other evidence adduced show circumstances to which a jury might, I think, give a construction which would be inconsistent with good faith in the transaction. Ido not particularise these circumstances, as I wish to suspend my own judgment on them at present. I would not have withdrawn the cose from n jury, and thcreforo I think that I should not.at this stage, to justified in pronouncing what would bo in effect a •non-suit." The case proceeded, unit after four days' further trial, the transactions in question were set aside as fraudulent and void. This case therefore does not show cither what were the circumstances! which induced the learned Judge to cast upon respondent for her defence, or what were the facts which induced him to find that the transactions were fraudulent and void. The authority mentioned by Mr Justice I\»nniston in his judgment in this case is Taylor on Evidence par 37fi A. in which it is broadly stated that

"where the subject matter of the Allegation lies peculiarly within the knowledge of one of the parties,tlint party must prove it, whether it be of an affirmative or negative character, ami even though there be a presumption of law in his favour." This rule appears to me to lie too •broadly laid down in - 111' Taylor's work. The subject is discussed In Hest on Evidence 9th Ed., 250-252, par. 275-276, where the authorities are collected. The true rule appears to lie that laid down by Mr Justice Holrovd in The King v. Burdelt. 4 H and Aid., at p. 140, 22 H.K.. 5(51, in these words : "It is established as a general rule of evidence that in every case the onus prolvandi lies on a person who wishes to support his case by a particular fact whiph lies more peculiarly within.his own knowledge, or of which he is supposed to be cognisant. This indeed is not allowed to supply the want, of necessary proof, whether direct or presumptive, against a defendant of the crime with which he is charged; but when such proof has been given it is a rule to be applied in considering the weight of evidence against him, whether direct or presumptive, when it is unopposed, unrebutted, or not weakened by contrary evidence which it would be in the defendant's power to produce, und if the fact directly or presumptively proved were not true." That this is the truo rule i.s shown by subsequent cases, of which I. may pit? Toe. clem. Ilridge v. Whitehead, HA and E. 5*71, '47 H.fl. OttO, and Albrath v. N.E. Hailwav Co., 11. Q.11.D. 419. Tho decision of Mr Justice Denniston in ii; llothl, is in no way inconsistent with the rule as so laid down.

It lay therefore on the respondent to give some pr o of, direct or pro-, suinpl.ive, that the moneys expended in the purchase of the hind in question had been supplied by -the bankrupt. All that the respondent established by the eyMcnpe adduced by him was (Jiat thy bankrupt's? assets, were insullicient to discharge- his) debts : that he did not Keep proper lnooks of account : and that it w a s impossible to say what sum (if any) had been applied to purposes other than tho legitimate expenses of the bankrupt's business ami- of the maintenance of His family. No doubt the fact that the bankrupt's wife had, during the period in which the deiiciency in his assets arose, acquired property for which she had paid by' instalments, was matter of grave susp|rion. It does not appear to mc however, that it is evidence direct or presumptive that the properly was acquired with moneys of the bankrupt. Suspicion, however grave it may he, cannot take the place of evidence, and if the cafe rested on the evidence adduced by the respondent alone it does not appear to me lhaf. the order could bo maintained. The case does not however, rest upon the evidence adduced by the respondent, The bankrupt with one of his tinnn left Syria some five or six years before fhp appellant. During Ihe time the bankrupt and hitj son were hawkers first in Australia, and afterwards in New Zealand. The evidence of the appellant and of the bankrupt and his son during ihi.s time is that both tho bankrupt and his son sent money from time to time to Ihe appellant, who remained in Syria with her other children. The appellant swears lhat she inntntoineri hermM CUltf her children by working as

ti dressmaker, and that she savet money out ot the remittances seni to her by her husband and her son Bafon* the appellant left Syria thi bonkrujit paid the passage money o the appellant and her children, am remitted to her some £4O in flddi tion. At) the same time the son sent the appellant £lo. About this thcr< does not appear to be any dispute The appellant swears thut immedi ately before she left Syria she sok certain lands, li'urniturc and jeweller;! fir vuiious sums amounting alto aether to £-185 Bs, and that sh( irought this money, together wilt tier savings, amounting in all U JC.'IOO, with her, In addition to thi! she swears that she hud money foi her incidental exjienscs on the voyage, and that when who landed ir New Zealand she had £3(11. In cor robornlion el' this e\ i lenve the up pcllunt produces thtic documents it Aruhfe;. purporting to be the deed: •if sile of certain lands in S,\riu sold by her immediately before sb kfl that country for Now Zen'.and I'ht-se documents, if genuine, nccounl for £ll2 Is M.'d out of the £.'»>] with which the appellant swears slvi landed in Now /calami. It is suggested on behalf of the respond /n that these documents are forgtrie concocted in New Zealand. To inee this suggc:tion the appellant tender ed iti evidence a document in Arabic purporting to be u certificate date; the second of June 1!>01 signed b; the headman oj the village of Mas hgra and under his seal, accompany ing tho deed« of sale. The Depuli district Judge refused to admit thi document in evidence, but he admit sed in evidence the envelope in whlcl nil the documents were forwarded I think" that the document accompa ning the deeds of sale was adinis siMe in evidence for the purpose o explaining how these deeds come t( bo in the possession of the appel lent, and for the purpose oT rebut ting the suggestion upon which tb respondent relies and must rely tha tWe deeds of sale were forgeries con coded in New Zealand. It is noi of course admissive for the purpoa of proving the deeds of sale, or thi other facts staled in it. If it wen admissible for this purpose It woak support, the appellant's evidence ai to the receipt of various other sunn of money, 'five deeds of sale and th receipt of the moneys mentioned therein are however proved by thi oath of the appellant. So inr ai the documents themselves are con corned it is not suggested that then is anything upon their face whicl suggests that they are otherwise than genuine. So far as I can judg they bear every indication of bcinj genuine, With the evidence befon the Court it would be impossible tc hold these documents to be forgeries. If they ure not forgeries it if Lrrlnin that the appellant had ihi> sum of £ll2 Is KM in her possesion when she left Syria. The appellant's evidence is thus corroborated n a very material point. There is nothing in the story by which she accounts for the possession of tin remainder of the money invested bj her which is inconsistent with proliability, and is is corroborated by Che evidence of the bankrupt and ol his son. If there is n prima facie case for the appellant to meet I think that die has met 'it. It cannot require itrong evidence to displace the prcnunption, if there be such a premmption, that because the husTjand s a bankrupt and the wife has invented money in the purchase- of proicrty, the money so invested is the notvey of the husband. Here it is lisplaced by live evidence a t the wife, lorrorboratod in a most material mrl-kuilar by documents which 1 find enuine, and of her husband and

their son. It may be that there is still a suspicmn, arising from the relation ol husband and wife between the bankrupt and the appellant, that the moneys invested in the purchase of the iand in question were in purt at least supplied by the bankrupt. Such a suspicion is quite insufficient! to justify an order charging th; appellant's property, such ns has been made by the Deputy District Judge in this case. To support such an order there must be evidence, direct or presumptive, that the whole sum invested has been supplied, U it hi sought to charge the property with the whole sum, or if less' than th? whole sum is claimed then it "must l>c shown what sum was so supplied

During the hearing of tho appeal Counsel for the respondent tendered in evidenco certain affidavits sworn in Sydney, which had been rejected by the Deputy District Judge. Various objections were made to the admissibility of these affidavits. I need mention only one —that the appellant had no opportunity to crossexamine the witnesses. This objection is in my opinion fatal. At nil events it would rob the affidavits of any weight which might be attracted to them. I have however necessarily rend the afldavits. If admitted they prove nothing calculated to throwany serious doubt upon the appellant's case.

Thy appeal must therefore be allowed, with the same costs' in the Court below ns were allowed against the appellant, namely twelve guineas and rill necessary disbursements-, to he ascertained by the Clerk of the District Court at New Plymouth, and with Iw'teen guineas costs in this .Court,' and all necessary disbursements in the appeal, to be ascertained by the Registrar of this Court at New Plymouth.