KENNEDY MAC.

NZ Truth, Issue 309, 27 May 1911, Page 1

KENNEDY MAC.

A COMPARISON WITH OTHER CASES.

View it how one may, the result of the Kennedy Macdonald fiasco CLiiaot be regarded m any other, light than that of, a blot upon the administration of justice./ This journal has ho intention of going so far. as to even suggest that the fountain head of justice has been tainted and corrupted, .for, even if it entertained such an idea, it would be incapable of substantiation,- although it cannot shut its eyes to the fact that ugly deductions have already been drawn by persons who are not prone to carefully and logically weigh their arguments. "Truth" does not, and Cannot, impute. „Jto . the Supreme Court bench any improper motives, but the matter does not end there ; not only must the Supreme Court preserve its purity, but, m order to command the respect and confidence of the people, without which it will cease to be, a power for good m the land, it must avoid all appearance anrl suggestion, of having acted under improper motives. This journal openly and unhesitatingly asserts that m this case throughout it has not exercised its discretion m a manner calculated to meet with the approval of the general public.

The facts speak volumes for themselves. A well-known and presumably respectable and honorable man m the community is selected as trustee m a deceased estate valued at many thousands sterling, and is, doubtless. So selected by reason of his accredited respectability and honor. Furthermore, he is given the outward and visible signs of respectability and honor by the Government of the day, m that he is made a Government nominee on the Wellington Harkor Board, and is duly appointed to a scat m "the Upper Chamber of tha Dominion's Legislature. Invested with such insignia, and legally clo:hfd with the titfe of "HonorRbl/'-,';' one cannot blame even a keen bUfi»i'.'<"-'-' : -« » IJi n f or crediting him with raci'r'ti i li.m common honesty m re-gi:..r/il-i!o 'money matters, and duly ? .i)-j--o"n!-.mq- him a trustee of a valuable estate which has to be administered after the death of the settlor. So, «S was stated at the outset, Mpcdbnald was selected as trustee m a deceased estate valued at many tho'.;s;irds storling. How ho acted up to his accredited reputation is aihpJLy manifested by what subsequently transpired.

The settlor died, and Macdonald entered upon the trusts committed to him.' Before leng, dissatisfaction regarding the administration of the estate was engendered, and, m order to secure their rights, a suit for accounts was initiated against Macdonald by the beneficiaries. With the initiation of such a suit, the first of a series' of remarkable events occurred, but then the defendant, as was stated above, was a more or less rem? rk able man, and so, presumably, demanded .remarkable treatment. Litigati&Mfcng and protracted, was entered 'uTon, but, from the very outset until early m the current year, nothing was publicly known; inasmuch as the cloak of "m camera" was thrown over the' proceedings. It has only come to light quite recently. For fully five years those unfortunate beneficiaries contested for their rights, and, as one result, Macdonald was ejected — or forced to retire— from his position of trustee of the estate. By a decree of the court he was adjudged debtor to the estate of between £3000 and &4000, ti-ust moneys received but not accounted for by him, which he was peremptorily ordered to hand over by his Honor Mr Justice Cooper by a decree bearing date December 22, 1910. As a pure act of grace, Macdonald was allowed until February 1, 1911, to hand over the money m question. With Mr Justice Cooper's order Macdonald did not comply, and, on February 10, leave was granted to issue a writ of attachment for such non-compliance, it being specially provided by - the Imprisonment for Debt Limitation Act that imprisonment not exceeding twelve

months may be » awarded to a defaulting trustee who fails to account for trust moneys m his possession. ■» • •

One would have thought that leave to issue a writ of attachment would have been the immediate antecedent step to actual imprisonment, which latter could only be avoided by payment of the sum ordered to be paid as having been found due and owing. Judging by previous cases, no other course would have been open to an ordinary man, but, be it remembered, Macdonald was not an ordinary man, being; as has been already stated, a Government nominee on the Wellington Harbor Board and a Government supporter m the ranks of the nominee Legislative Council. "Truth" is not speaking at random m saying that no other course would have^been open to an ordinary man, for it had two precedents as a guide, m both of which merely "ordinary" men were concerned, where absolutely no quarter was allowed. Little more than six months have elapsed since trouble ensued between Messrs Hannah and Nodine regarding a lease, and Nodine, honestly (if mistakenly, but honestly, as a jury actually found) believing himself to have been the victim of a wrong, declined to sign a draft lease. After certain proceedings, Nodine was ordered to sign the lease by order of the court ; he rer fused, whereupon leave to issue a writ of attachment was granted, and, immediately afterwards, on October 11, 1910, he was brought before I;he court for disobedience. Nodine was not allowed to go into the merits of the matter, and that day he was committed to prison for a period of three months. .' •* ■ .

Still more recently, Oliver Mewhinney was ordered by the court to hand over the children of his annulled marriage to his ex-wife, and he, stoutly maintaining that she was not a fit and proper person to have the custody of them, honestly, even if erroneously, believing such to be the case, as at least one' Supreme Court judge found, declined to obey the order. Leave to issue a writ of attachment was granted for such disobedience on January 10, and, three days later, viz., on January 13, he, being debarred from discussing the merits of the case, was committed to the Terrace Gaol for contempt. Was the leave granted m. Macdonald's case on February 10 followed as expeditiously and as summarily as was the cases of Nodine and Mewhinney ? Anything but it ! But then, Nodine and Mewhinney were "ordinary" men and not Government nominees on Harbor Boards or Legislative Councils ! In Macdonald's case, delay was caused by an appeal, which came on for hearing on April 4, nearly two months later, on which occasion, for the first time, the facts which had transpired during the preceding five or six years came to light." The court reserved judgment, which was eventually delivered on April 25, when it was decided against Macdonald on all points. Further delay ensued, this time because it did not suit the court's convenience to take the case earlier, and the matter came before their Honors the Chief Justice (Sir Robert Stout) and Mr Justice Chapman on May 16, when it was further adjourned until May 19, leave being given to Macdonald's counsel to file & motion for his discharge on the following grounds :-"(D That imprisonment will bo gravely prejudical to the defendant! state of health ; (2) That no benefit will accrue to the plaintiffs from the imprisonment ; (3) That the real object of the attachment proceedings is not to obtain payment of the amount shown to be dJe on the- defendants accounts and (4) That m all equity and good conscience there are large amounts S^.d^a^^g Thic°h letrallv claim at present, »"■.* . legaiiy oia. en m to account :n ought to be iai«*i» « determining whether he should be committed to prison or npx.

His "discharge"! Why. he had never even been incarcerated ! toure

ly to be allowed to move for his discharge before bis incarceration is truly Gilbertian, and still more so for. the "court to entertain such, an application by a man adjudged guilty of contempt. It will be seen that ground No. 4 goes to the merits of the case, which were held to De outside the scope of allowable ar«ru- [ ment m both Nodine's and Mevrhhiney's cases, and that grounds Nq> 2 and 3 • are really begging . the question. The court; as a matter f>f fact, confined itself to the .first ground alleged, viz., that "imprisonment will be graveiy prejudical to the defendant's state of health.'? Upon that ground the court considered quite a number of medical affidavits, which were about as explicit as medical evidence usually is. Suffice it that the court ordered Macdonald's discharge from an imprisonment to which he had never been really subjected, simply and solely on the ground that imprisonment would be gravely prejudical to his state of health. So a man, who has, on the finding of the Registrar of the Supreme Court, after a lengthy and exhaustive inquiry, supported by no less than six Supreme Court judges, whose unanimity upon the matter is almost unique, wrongfully retained thousands of pounds of trust money, and thus set the court at defiance, is allowed to go scot free and unpunished.

"Truth" does not want to intrude personal matters into a discussion of this lcind, but it cannot refrain from drawing, attention to the marked contrast to the treatment meted out to -a former employee of this journal when he was adjudged technically guilty of an offence of which he^ had absolutely no personal knowledge. Very strong medical , evidence was brought forward to show -that imprisonment would probably endanger his health, but the plea was set at naught, and, subsequently, the truth of such evidence was manifested, when the man's state of health became so precarious after hiß imprisonment as to absolutely (necessitate his release. He had. to go to prison first, however, the medical evidence notwithstanding, but then he was merely an employee of a metropolitan newspaper instead of a powerful Government supporter and a nominee of the Government m the Legislative Council. Is it any wonder that people are making use of very ugly innuendos and drawing deductions from the fact that Royal Commissions with fat emoluments are from time to tftme d6led out to Supreme Court judges by a Government which may want protection given to its own supporters from time to time? '. 'Truth" does not believe there is ' any connection between the two, but it should not be open to :.. people to draw such inferences. The Supreme Court, "Truth" believes to be pure and free from taint of corruption, but it should avoid involving the judicial system m any suspicion of corruption.

Turning now to the position of Macdonald, whom the court, while "discharging" him. expressly held to be still m contempt, he cannot but be regarded as a discredited man. Indeed, assuming the language used by Mr A. W. Biair to be anything like justifiable, and Mr Blair is not given to the use of fntemper.ate language, Macdonald is absolutely unfitted to hold any public office whatever among decent men. Of course, Mr Blair's observations were made upon a privileged occasion, when he was opposing counsel, but, coming from a man of Mr Blair's calm and even temperament, mark a crisis m the life of a man who for years past has. gone among his fel-low-men as an upright and honorable man. To disregard such remarks and a crisis so denoted would m itself indicate a case-hardened man, as, indeed, Mr Blair designated him, and it is only due to the electors of this Dominion that such a marked man should retire from public . life, and, at any rate, cease to pose as an "Honorable" and salaried member of the Legislature, at lease until such time as the electors deem fit that he should be returned upon their votes alone. His presence as a Government nominee must be damaging to the present Administration, and his effrontery m tenaciously retaining his seat m the present crisis is a blot upon the public life of this community, as his exemption from punishment' for openly flouting an ' order of the Supreme Court has proved a smudge upon the escutcheon of Justice m the Dominion.