THE MACDONALD CASE.

Stratford Evening Post, Volume XXIX, Issue 89, 3 June 1911, Page 2

THE MACDONALD CASE.

A FRESH PHASE. A rather curious coineiclonce in eon-•.-vction with Ibe MacDonald case says the “Dominion”) is worth rcording. Th.c public generally pro»ahly are not mvine that hut for a lauso slipped into the .1 udicatnrc U-t of last session, (he iStunenio Court vonld h:!\'(' had no power to discharge

.ho writ of ai.iacluneni issued against vlacDonald,. This clause was not in die dill when introduced in- the Regis.ativo Council by I);- Findlay in Oct.)hei - last, hut was inserted hy someone on the Statutes Revision Coinmil tea. The history of this Rill is i little out of the common. It was i short measure of two operative el a uses when introduced, its main object being to overcome the difficulty

which arose in the Nodiao case when Mr Nodi no refused to sign the lease, the 'subject of the dispute, and was sent to gaol for refusing to obey the U’der of the Court. lir Findlay explained that the clause was designed o empower the Court ra authorise a Court officer to sign in place of a party to an action who refused to obey the order of the Court, as in the Nodiiie case. It was promptly pointed out. that it was improper to pass legislation affecting proceedings then before the Court, and in consequence the Rill was referred to the Statutes Revision Committee. Then a very curious thing happened. The Bill came back with a new and very proper proviso excluding any litigation then before the Court from the provisions of what wo shall call the Nodine section; but an entirely new clause had Jicen added, as stated, ex-

tending the power of the Court in respect of writs of attachments. The reason given for adding this new clause was that 1 it was desirable to bring the daw of New Zealand into conformity with that of England. It is a little >curious that this difference in the law should have existed for over thirty years without comment and that the discovery should then be made so opportunely for a member of'the legislative body which deemed it advisable to make the change. It is also a rather strange coincidence that the first person to benefit under the change in the law should he a member of - the Legislative Council which brought it about. But what c’tiilrrs ns ns pfinnllv rpmnrVnhln is

that the Legislative Council should consider it necessary in the case of the Nodino clause to add a proviso excluding litigation then before the Court, whereas in clause 1, the clause hearing on the MacDonald case, no such proviso was deemed necessary. Was this due to the secrecy with which the case had been shrouded?' Anyway, the result of this omission was that the plaintiffs in the action commenced their suit knowing .that they had power to enforce payment for a breach of trust by obtaining an order for the imprisonment. of the defendant trustee. Dining the progress if the action, and just as the fruit of several years’ litigation seemed to he within their reach, and the Court had ordered payment of the misappropriated trust funds, the law was amended and the punitive provisions modified to their detriment—their strongest weapon was taken from them. Naturally the question will lie asked who prompted the amendment of the law last session which enabled the defendant MacDonald to escape? Without that amendment, the Court would appear to have had no option in the matter—there was no alternative; either payment had to ho made or imprisonnufiit ..snlfwd under the writ of attachment.