JUDGMENT

W. Comer Petheram, C.J. - This is an appeal from an order of Mr. Justice Trevelyan while sitting as Commissioner in Insolvency, and by which he committed two persons, who were insolvents and within the jurisdiction of the Court, to be imprisoned on the criminal side of the jail for a period of one year. That order was made by the learned Judge under the provisions of Section 50 of the Insolvent Act, and it is necessary to examine, for the purpose of what I have to say, the provisions of that section rather closely. That section provides "and be it enacted that in case it shall appear to any Court for the relief of insolvent debtors that any such insolvent has fraudulently, with the intent to conceal the state of his affairs, or to defeat the objects of this Act, destroyed or otherwise wilfully prevented or purposely withheld the production of any book, paper or writing relating to such of his affairs as are subject to investigation under this Act, or kept or caused to be kest false books, or made false entries in, or withheld entries from, or wilfully altered or falsified any such book, paper, or writing, or that such insolvent has fraudulently, with intent of diminishing the sum to be divided among his creditors, or of giving an undue preference to any of the said creditors, discharged or concealed any debt due to or from the said insolvent, or made away with, changed, mortgaged, or concealed any part of his property, of what kind soever, such Court shall have power to adjudge that the insolvent shall be imprisoned for a period or periods not exceeding two years in the whole, as such Court shall direct, and to declare him entitled to his discharge as aforesaid at the expiration of the term of imprisonment to which he shall be sentenced, and by warrant under the seal of the Court to order him to be arrested and committed to prison and there to be detained accordingly. "Now the matter came before Mr. Justice Trevelyan in this way: The appellants, the insolvents, were persons who had carried on a considerable trade for some years (they were brothers), and in August 1886 they were adjudicated insolvents on the petition of some of their creditors. The creditors, upon whose petition they were adjudicated insolvents, were not the opposing creditors at that time, but when they came up to be examined before the Commissioner of Insolvency, they were opposed by certain other creditors, and it was upon that opposition that this order was made. Prior to that order the books of these persons had been examined, they themselves had been examined and cross-examined, and certain witnessess had also been examined and cross-examined, and upon that the Commissioner came to certain conclusions and made an order in this form. As I said just now that order was made under the section of the Act which I have just read, and the first question we must consider here is what must have been made to appear to the Court, and in what way it must have been made to appear, before he had power to make an order under this section.

2. It is clear on the face of the section that it provides a punishment by way of penalty for the commission of certain offences, which punishment is to be administered by the Commissioner of Insolvency if it is made to appear before him that these particular offences have been committed. Speaking for myself, and I think for my brother PlGOT also, I am clearly of opinion that the words "in case it shall appear" in this section must mean, in case it shall appear by legal evidence that the person to be punished has committed the specific crime he is said to have committed, and that before any person can he punished under that section, he must be shown by legal evidence to have committed one or other of the offences which are enumerated in the section, and that it is not enough for the Commissioner, upon the matter coming before him, to be satisfied that this is a very suspicious commercial case, or to be satisfied generally that th