August 19and 26.
( 140 )
In the Matter of the Insolvency of J. G, De Silva.
D. C., Oalle, 266.
Decree for alimony—Arrest thereunder—Insolvency—Release of insolvent—■.Discretion of Court with regard to it.
Under a writ in execution of a decree requiring a husband tosecure alimony to his wife, it is irregular to arrest him.
He cannot be adjudicated an insolvent on the alimony due as adebt, for it is not a debt provable in insolvency.
It is in the discretion of the Court to allow the immediate releaseof a man absolutely or on conditions after he is declared insolvent,but where it refused to grant an insolvent his release on the groundthat he. was under arrest for alimony, held, that this reason wasunsound, and the order of refusal could not stand.
TN an action against the above-named insolvent by his wife for■*- a separation a mensa et thoro, the insolvent had been con-demned to restore to bis wife certain articles of jewellery or topay her their value, and to secure to her certain sums of moneyfor past and future alimony, and to pay her costs of suit. Inexecution of that decree the insolvent had been arrested and com-mitted to prison. Having lain in prison twenty-one days he wasadjudicated an insolvent, and he now applied to the Court for pro-tection and release from custody. The District Judge disallowedthe motion because, in his opinion, a person was not entitled torelease by bankruptcy from a debt for alimony. The insolventappealed.
Sampayo, for appellant.
Domhorst, for respondent.
Cur adv. vult.
• 26th August, 1895. Withers, J.—
The District Judge considers that he has no jurisdiction to orderthe release of the appellant, because he has been arrested under' awrit of alimony. This is. not one of those cases mentioned in the36th section of Ordinance No. 7 of 1853, in which it is providedthat the Court shall not order the release of an insolvent who is incustody.
He was not committed for disobedience in complying with theCourt’s order that the insolvent should secure his wife certain sumsfor past alimony and a certain sum for permanent alimony in thefuture.
The truth is, it was irregular to arrest the husband under a writin execution of that part of the decree which required him to securealimony. He could not be adjudicated an insolvent on that as adebt, for it is not a debt provable in insolvency.
( 141 )
Havyig been in custody for more than twenty days for so muchof the decree as was provable in insolvency, he was (other conditionsbeing fulfilled) entitled to be adjudicated insolvent; and in fact theDistrict Judge has so adjudicated him insolvent.
It was urged that it was in the discretion of the Court to allowthe man’s immediate release absolutely or on conditions. So itwas, but the Judge refused to grant his release on the ground thathe Was under arrest for alimony.
But, as I have just observed, the arrest under a writ in executionof the decree for alimony was irregular. Hence the Judjge’s reasonappears to me to be an unsound one, and as no case'has been madewhy he should not be allowed to go at large pending insolvencyproceedings as to debts which are provable against him, I think itwould only be reasonable to permit his release.
1893…August 19and 26.
In the Matter of the Insolvency of J. G. DE SILVA