ASHBY V. CRAIG

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IN THE HIGH COURT OF AUSTRALIA

Judgment delivered atMelbourne ,_ Hn Dew GP, Ma | on Thursday, 1st June, 1950.

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ASHBY ve __ CRAIG.

ORDER.

Appeal allowed. Decree of Supreme Court set aside. In lieu thereof declare that the estate of the late Alice Milham included and still includes the debt of £804 mentioned in the statement of claim. Suit remitted to Supreme Court for such further accounts enquiries and orders consequent thereon consistently with this order as it may seem proper to the Supreme Court to direct or make. Respondent to pay to appellant one half of the costs of the suit and one half of the costs of the appeal, further costs to be in the discretion of the

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Supreme Court.

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JUDGMENT.

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. REASONS FOR JUDGMENT. at,

The appellant Mrs. Amy Ashby and the respondent Mrs. Eva Craig are the daughters of the late Mrs. Alice Milham and are executrices of her will. They are entitled in equal shares to the residue of her estate. Mrs. Ashby instituted an administration suit against Mrs. Craig, relying particularly upon allegations that Ers. Craig had wrongly appropriated to her own use a quantity of money, consisting of a large number of flan ims concealed in a tin and jar, belonging to her mother, and that she had not repaid a loan of £804 made to her by her mother. Roper C.J. in Eq. gave judgment for the defendant. The plaintiff has appealed to this court. The questions which arise are entirely questions of fact. The findings of the learned judge as to the credibility of witnesses were not challenged by either appellant or respondent. The @pellant conte that even if those findings are accepted she should have succeeded inthe suit.

As to the money in the tin and the jar, it was found by the leamed trial judge that the defendant did not tell the truth as to the time and circumstances of removal and opening of these receptacles. There are improbabilities in the story of the defendant that her husband out of his relatively small wages succeeded in saving during the relevant period the amount of money (over £400, perhaps £600) which was contained in the tin and the jar. But these justifiable criticisms of the defendant's ease do not establish the plaintiff's case. The onus of proof that the money was the property of the plaintiff rested upon the plaintiff. There was no evidence for the plaintiff to show how the money was brought to the home of the defendant, where it was concealed. There was no evidence for the plaintiff to show that her father or her mother had saved the money in question, though the probabilities of the case are consistent with the father having done so. "Milham £2" was written upon papers in which the money or some of it was wrapped. There is no evidence as to when or by whom or for what purpose the writing was done. It is quite possible that the father owned the money, but this is not proved. There are no facts from which such owrership can be inferred with sufficient certainty to justify a finding for the plaintiff on this issue.