JUDICATURE AMENDMENT

New Zealand Times, Volume XXXII, Issue 7263, 20 October 1910, Page 5

JUDICATURE AMENDMENT

IMPORTANT NEW PROPOSALS. . TRUSTEES’ LIABILITIES. v Tile Attorney-General, in. moving the committal of the Judicature Ameuumenti ‘ Bill, said that he had an. important new amendment to propose in regard to theabolition of imprisonment for debt, existing Jaw provided that, wi-thvthe-ex-ception of five cases, no person - could arrested or imprisoned lor making default in payment of money. 'The amendment proposed to give discretionary power in dealing with cases coming under two of these headings. Under the exiting law, if a 'trustee (who in hie trust , should have certain fmvds in hand, but-owin-g to a perfectly innocent mlstaka had not - got them) was ordered by a judge to .pay the sum into court, there was no option hut to ©end him to prison if a writ of attachment was moved for upon .non-payment. This had not been pressed to a bitter, conclusion, so £aa? as he knew, but steps had been taken to have an innocent trustee sent to prison under the provision. The poehti{on» yaa; somewhat the same in the ca#e fault of a solicitor, Who- might be pirrV v fectly innocent, and yet, on a writ ofi attachment, must be sent to p ri&on* Tho Jaw had been altered jn England twentytwo years -ago, but had i-emained unchanged , here, illustrating clearly that a great deal yet remained to be dona in bringing our laws into a reasonable state. He had heard of the case of ai / • trustee 'who was absolutely innocent, and yet had to ipake such a struggjeto . find certain funds • as to deprive his ; wile.and family of their means. Haying the ’procedure of England and tho plaip justice of the case before tiiem, ■; lie thought it was time to make the proposed amendment. All it was intended was to giye the court the’discretion of saying that a man was innccopt, and , also the, power to, refuse an order, which at present it was iinobla :■ to do. It was a dangerous thing tb%t . , an innocent: trustee or solicitor should , be exposed to -tho present machinery to force payment in particular cases, where he really has not the monev and ought not to lie sent to prison- The proposed new clause provided that any court or 1 - judge making an order for payment, or having jurissdiction in the action or proceeding in which the , order for payment is made, may inquire into the case, .. and may prant or refuse, either absolutely or upon) terms, any application: Tor a writ of attachment, or other pro- v ■ cess or order of arrest or imprisonment. • and any application to stay the operation .:• * of any such writ, process, or order, for discharge from arrest or imprisonment thereunder, in any case coming within either of tj>e following exceptions (which are contained in the Imprh.oßmopt fyr Debt Limitation Act):-?-Default of a trustee or person acting in. a fiduciary capacity and ordered to pay by a court . . . .any , sum in his- possession or control. pefauß by .a, solicitor in payment of costs when ordered to .pay costs'* for misconduct; . .or im payment'#! ' a sum of money when ordered to pay in Jiis character of au officer of tbi - court making tho order, p

EXECUTION OE IX/STBUMEN'fS.

In committee on theiclause providing for the execution ,of. instrumente' RJ; i ;j order of the 'Supreme Court where do* fendantsrefuse to do at> t> the Attoruey-■(.kmeraleanoved-t he-adoption,- of the new Bub-clauso put .in by the Statutes Heyfi B-iAn .Committee. Its- purpose, he said* that the Bjlt fwasßjnDt retroactive; that was, that it f-trouldi not apply to-the Ncdifie case. Thai pew snb-clanse was agreed to on the vdiocs. ■ ■ ■■■ Tho .-Attorney-General moved the ftdpp- * tion of the new -clause -to which he previously referred, and, in reply to f&K x■ quests to let it stand over t. II the following day, said' that* the jinwisfon, badbeen the-law of England for twenty-two years. It simply gave discretion to the court. At present, no mutter how innocent a trustee .might be, the court hijd no option but to send him to prisonThat was a barbarous etate of affaire, and he was sorry he bad not been able to remedy it before. It should not stand (or an hour longer than cooWbe helped - The amendment absolutely limited tb® discretion .to the ca,sas of tfitstpaa- »f, others in a fiduciary position, or to solicitors under special circumstances. "It does not apply to debtors?’’ inquired the Hon. J. K. Jenkinson, "No," Dr. Findlay replied. "Has it anything to do with a case now pending in the Supreme Court?’’ Mr .Tenkinson asked. “Absolutely nothing to do with if," was the reply. The new clause was agreed to and the Bill was reported. The third reading was set down for to-day.