Wellington Independent. "NOTHING EXTENUATE; NOR SET DOWN AUGHT IN MALICE." THURSDAY, 19th DECEMBER, 1867.

Wellington Independent, Volume XXII, Issue 2611, 19 December 1867, Page 3

Wellington Independent. "NOTHING EXTENUATE; NOR SET DOWN AUGHT IN MALICE." THURSDAY, 19th DECEMBER, 1867.

In hia recent charge to tlie Grand Jury, liis Honor Mr -Justice Johnston pointed out one of the chief difficulties -which are likely to arise in canying out the new Bankruptcy Act, when he expressed doubts of its success in practice, unless creditors themselves took the chief management of the estates of their debtors. " The act," said he. " might be an admirable statute as respects policy as fai' as it regarded a settled country ; but there were so many different circumstances in anew country, that from want of the necessary machinery for working, it might be found that the system would almost break down under its own weight ; while, on the other hand, it might turn out to be a scheme excellent in principle and practice in the mother country, but not quite so applicable to this country. But as the present system had been found perfectly unsatisfactory and inefficient, probably the worst that would happen would be that after the new system* had been tried and found inapplicable to the circumstances of the colony, it would have to be done away with. He could not help feeling doubtful of its success, when he found certain duties cast upon officers of that Court which it waa perfectly certain that it was physically impossible for them to discbarge — uuless, indeed, it should turn out that after the passing of this Act, which it was certain had not been the case before, the creditors themselves would take the trouble of looking after the estates. His experience was that creditors in nonpaying estates, would not trouble themselves ; he was, therefore, afraid that the amount of labor and anxiety thrown upon the officers of that Court would prevent them performing other and more important duties. It was, however, the duty of the officers of the Court and of all other persons to carry out to the best of their ability the intentions of the Legislature." "We are by no means sure that the new act is a particularly good one, because though it may be sound enough in principle, yet we doubt very much whether it is not too cumbrous and illconstructed in detail to work well in practice. The Scotch Bankruptcy Code of 1854 was a most excellent measure—a perfect model indeed of clearness and brevity — while its applicability to the intended purpose was proved by the fact

that estates were wound up and dividends obtained under its provisions, inoro cheaply and quickly than wns practicable under the English system. Now, what-, ever may be the faults of the New Zealand Act, a perusal of it convinces us that it cau be made to work, at least fairly, if the creditors in each sequestratiou will, by a diligent performance of the duties which devolve upon them, look after their own interests and manage the estate themselves. This sharp attention on the part of creditors is the secret of the success which has attended the working of the Scotch Bankruptcy Code ; while it is the apathy aud indifference evinced by creditors here that has been a chief cause of the bad working of the system in New Zealand. But it may be said, the Scotch. Code is one thing ancl the New Zealand Act another. This is trqe, to the extent that the latter is avery clumsy and cumbrous reproduction of the former measure, but both arc very much alike in their provisions respecting the powers ol creditors in tho possession, collection, and management of estates. Creditors in !New Zealaud have ample powers eonj ferred upou them. It is through their aid and consent that a sequestration is eflected ; it is with them, to a great extent, rests the election of a trustee to manage the estate, aud his proceedings are under their control as well as under tliat of tho Court. JFrom lirst to last — irom the presentation of the petition till the application for tlie i bankrupt's discharge— the creditors if fchey choose to act, can exercise a powerful control over everything that is done. We would therefore recommend all mercantile men io make themselves familiar with the present bill, and having done so, to set themselves diligently to t-heperform-jinco of those duties which devolve upon them. No mercan tilemauncedfearthat the present Bankruptcy Act will break down,, because cumbrous legal machinery has not been created to ensure its working. There is no necessity for such machinery. Any person who is a oompetent accountant is perfectly qualified to perform the duties of trustee, and it only requires ono solicitor to act as law 'agent in each sequestration: That is the Scotch system which, as we said before, works very well, and uuder which, moreover, the affairs of a bankrupt are subjected to the most rigid scrutiny. If accountants in Now Zealand would study the law of bankruptcy, tliey wonld soon- become qualified to perform tlie duties of trustees; while if members of the bar would make themselves better acquainted with commercial law, we should have less of delays and mismanagement in the administration of insolvent" estates. No Insolvency Court bas been created m New Zealand ; nor, indeed, is it necessary. In Scotland, fjhcrilfs. who arc all trained lawyers, act as judges in bankruptcy, and the Court of Session has also jurisdiction ; in New Zealaud, the same system is reproduced by giving similar powers to the Districi and Supreme Court Judges.