[insolvency, discharge – imprisonment for debt]

In re McShane

Insolvent Debtors’ Court

Commissioner Fleming, 29 November 1843

Source: Hobart Town Advertiser, 1 December 1843

(Before the Commissioner Fleming.)

Judgment

            Michael McShane; adjourned meeting for discharge.

            The Commissioner said, the insolvent’s discharge had been opposed on three grounds, the first of which was a wilful disposition of his property. The observations he should offer on this part of the case were founded on the insolvent’s own evidence. In the month of July he kept a public-house, called the Golden Fleece. The furniture, stock, and other property in the house, he sold to a man named Luke Bryers, and turned over to him also the right to use the license, although there had been no announcement of the transfer. The insolvent  had distinctly sworn that he knew nothing previously of Bryers, except that he came somewhere from about New Norfolk. Bryers had said he expected money to come from the country, when he would pay for the property. It must be obvious that this story about the money was a mere pretext; and, in fact, it never came; and then the insolvent took Bryer’s bill, a mere piece of waste paper, for the amount. And yet it was under such pretences as these that the insolvent executed an assignment to Bryers, parting with every vestige of property he had, and leaving his bona fide creditors without a penny. The insolvent had acknowledged too, that all this time he was living at the Golden Fleece, as a lodger; those who had been accustomed to deal with him, saw him about the premises, and had not the slightest intimation of the important change in his affairs, the same name being still painted over the door. All this time the insolvent’s embarrassments were thick upon him, and it was even doubtful whether the assignment was not effected after execution had issued at the suit of Mr. Gaylor. In considering the offence of wilful disposition of property, it was necessary to inquire, first, when the transfer was made; secondly, what was then the state of the insolvent’s affairs; 3rd, the causes which induced the act. On a review of the evidence on all these points, he had come to the conclusion, either that there had been a conspiracy between Bryers and the insolvent, to defraud the creditors, or that McShane had entered into the contract with the most reckless indifference and disregard of what was due to those of whom he had obtained credit; and the proof of wilful disposition of property was complete. The second general ground of opposition was, that he had contracted the debt with Mr. George Hutton, under false pretences, and here again he must look to the evidence. The insolvent’s own testimony proved that he incurred the obligation at a time when he appeared as the ostensible proprietor of the house. On the 27th July everything had been transferred to Bryers, and this debt was contracted on the 28th. The evidence of Mr. George Bilton was, that the insolvent, when he purchased the goods, told him he was a publican, carrying on business at the Golden Fleece, that he had been dealing with Mr. Molloy, but was not satisfied; and he should want other goods besides these. Under this head, it was necessary that there should be proof, first of these having been a pretence; secondly, that the pretence was false; and thirdly, that by such pretence the party was induced to give credit. The pretence was quite clear; the insolvent told Mr. Bilton that he was landlord of the Golden Fleece, and should want other goods. The falsehood was also apparent, for the business was then being carried on by the man Byers; for in his own evidence he says, “Whatever was in the house I sold to Byers;” and it was false that he should want more goods. On the other point, Mr. Bilton had distinctly sworn that, but from a belief in the statements of the insolvent, he should not have let him have the goods, and further that it was to be a cash transaction. This and other material parts of Mr. Bilton’s evidence was confirmed by that gentleman’s clerk, who was present at the interview. The case, however, was adjourned, at the request of the insolvent’s solicitor, to give an opportunity of examining a witness named Cunningham, but his statement was not substantially different from that given by Mr. George Bilton. The insolvent had attempted to make it appear that Mr. Henry Bilton told him to go to the wharf, and get goods for the difference between a debt of about £16, and a 35l bill; but even on the insolvent’s own evidence, it was not pretended that when Mr. Henry Bilton talked of the insolvent getting goods at the wharf, he ever once alluded to his brother George Bilton; and the latter gentleman had sworn that, it was a distinct transaction between himself and insolvent, having no reference whatever to his brother Henry; and he must come to the conclusion that this ground of opposition had been fully supported. The third ground of opposition was, that he had contracted the debt with Mr. George Bilton, without any reasonable prospect of paying it. He scarcely deemed it necessary to say one word on the point. Here was a man who had just assigned to another person every vestige of property - his furniture, stock in trade, license, and every thing else, and left himself, as he had sworn, without a shilling. What prospect could he have, then, of paying the money for the goods which he was obtaining under the false pretence that he was still a publican? In every aspect in which the case presented itself it was a very gross one; and he should not be doing his duty, unless he visited such conduct with severe punishment. He should, therefore, postpone the making of the order of discharge for a period of nine calendar months, and further order and adjudge that the insolvent Michael McShane be imprisoned during that time. The insolvent was then removed in custody of a javelin man.