The Press. FRIDAY, MARCH 1, 1867.

Press, Volume XI, Issue 1346, 1 March 1867, Page 2

The Press. FRIDAY, MARCH 1, 1867.

A pamphlet has recently been published in Christchurch, entitled "Notes on Scotch Bankruptcy Law and Practice," written by Mr. Gh A. Esson, Accountant in Bankruptcy in Scotland, for the purpose of explaining in a popular form the policy and working of the Scotch law, which, we may add, is allowed on all hands to be the best that has ever been framed. The preface informs us that the edition oi these Notes was printed at the instance of "a gentleman who intends to circulate them in New Zealand, in the belief that they are calculated to promote the enactment of a simple and useful bankruptcy law in that colony;" and we must say that the, colony is much indebted to him for his liberality and public spirit, which we hope may be rewarded by the attainment of the object he has in view.

The construction of an equitable yet thoroughly efficient system of bankruptcy has been an often attempted but almost insoluble problem to the English Legislature, and though the law has been again and amended its condition does little credit to the prominent position the country holds.in the commercial world. Failing to grasp the fundamental principles of the subject it has oscillated widely between two extremes; at onetime.almost.barbaric, in its simpli-. city, - at another encumbering its legitimate functions with an attempt to establish a code of commercial morality I —an endeavor which we need hardly say resulted only in impeding the operation of the law, driving the Courts distracted, and _ generally in. making confusion worse In its last phase it has delighted in crowds of officials and a multiplication of legal ceremonies, of no practical effect except that of defrauding creditors of their rights by eating up the bankrupt's estate. In short, its procedure has been so tedious and so expensive that creditors, for whose benefit the law was supposed to be designed, avoided as much as possible to seek its assistance, while debtors desirous of evading their obligations found in it a refuge and a defence. j Our dealings with the subject in this colony have followed much too closely the example set by the mother country. The bankruptcy law of New Zealand has never at any time been in a satisfactory etate, and alterations have been loudly demanded by commercial and business men in both islands. Amendments have been made, but they have been of a very patchworky sort; clauses from various English Acts being strung together with little attention either to the principles and tendency of the whole or the coherence and practical working of the parts. No more sweeping condemnation could be passed on all previous .attempts-at law making than the resolution come to by the House of Bepresentatives last session to repeal

the amended laws altogether, more mischievously defective an '~i ding to grievances more intolerable than the primitive state of things they were intended to supersede. The improvement of our colonial bankruptcy law is evidently a question with which the General Government have no desire to grapple, and has been put off on various pretences, once on the ground of want of information, and lately on the plea that-as-a-Bill on the same subject was to be broiigh-t before the House of Commons, it would be well to see what were the provisions of that measure and how it was received before attempting legislation here. Such an excuse, however reasonable a year ago, will not pass current again. The Bill in question was introduced by the then Attorney-General «early in the last session of Parliament, and elaborately explained in a speech, of which we published a digest at the time. True the RussellGladstone Ministry soon afterwards went out of office, and the Bill consequently fell to the ground; "but as it was based on the recommendations of a Select Committee which had been engaged for a considerable time upon a careful investigation of the various existing forms of bankruptcy, and as, whatever objections were taken to details, the main ■, principles were generally accepted by the House and by the mercantile world, we do not suppose that any Bill introduced by another Government would materially differ. The Select Committee strongly recommended, and the Bill accordingly provided, that the English law of bankruptcy should be assimilated to that of Scotland, to which the Committee after taking full evidence accorded a decided superiority over any other in existence. The pointed difference between the two is that the English system entrusts the collection and realization of a bankrupt's property and the division of it amongst hie creditors to officials appointed by the Court, whereas under the Scotch system these duties are committed to the creditors themselves; the result being that in the one case the great bulk of the property is swallowed up in legal expenses and but a small percentage left to the creditors, while in the other it is the expanses that are trifling, and nine-tenths of the property recovered are available for dividend.

Mr. Esson's pamphlet explains every point in the working of this system, of the minutest details of which his long official experience has made him master. An appendix contains the number of sequestrations in Scotland since the new Act came into force, the value of the estates involved, and the results of the winding-up both as regards the creditors and expenses. The whole forms a valuable little work, containing a large fund of information intelligibly and succinctly conveyed. The writer differs from the reports of the Select Committee in some particulars, especially with regard to the abolition of imprisonment for debt, to which he is strongly opposed, aadalao as. to the suspension of discharge for a term of years in cases when a bankrupt's estate does not pay a dividend of 6s 8d in the £. His remarks on " fraudulent bankruptcy and its punishment" seem to us very sound, and the quotation from a speech by Lord Moncrieff, the Lord Advocate of Scotland, lays down the true policy of the law in that respect with great precision. For all particulars we must refer our readers to the work itself. After the report of the Select Committee so often referred to, it seems almost certain that the Scotch system of bankruptcy will eventually be adopted in England, and thence probably with more or less modification be transferred to the colonies. As a complete exposition of that system we commend Mr. Esson's pamphlet to the notice of all who are interested in the subject, and especially ta__those.- wha will- have to legislate upon it.