D.—No. 5

TO THE EDITOR OF THE " DAILY TIMES," (DUNEDIN.) Sir, —I shall be obliged by the insertion of the following letter in your paper of to-morrow: — Sin, — Dunedin, 4th July, 1865. Having a particular engagement this afternoon I will not be able to attend the special meeting of tho Chamber called to consider the suggestions concerning the Debtors and Creditors Act. I therefore beg to offer for the consideration of the Chamber a few remarks in writing. I do not concur with several of the suggestions, and am of opinion that tho Debtors and Creditors Act, as it stands, has received too sweeping a condemnation, and has been held responsible, as it were, for results which no legislation could remedy. We must look to the spirit of speculation engendered by the discovery of the gold-fields to the consequent arrival of many adventurers without means and sometimes without principle, and to the reckless over-trading of the past three years, as the true cause of much of the mercantile embarrassment and insolvency which has recently been seen amongst us. It is a notorious fact, that men who had made discreditable failures in Victoria, and been esteemed there unworthy of credit, have received unlimited credit here both from Banks anil private individuals. It is, therefore, unreasonable to lay the blame of much which has taken place to the door of our colonial law. At the same time, from the working of the present Act many minor improvements will have suggested themselves, and these may be carried out beneficially without involving a radical change in any of the fundamental principles of the statute. Tho framers of the Act seemed to have contemplated such improvements by allowing the Judges to frame regulations and delegate their power. They had overlooked the fact that the Judges would be slow to avail themselves of such a prerogative. The province of Judges is to interpret laws and not to make them, and it is not to be wondered at that our Judges should not put in force the constitutional powers granted to them. If the Judges had availed themselves of the powers entrusted to them many causes of complaint would have been obviated. For example, one well-grounded complaint arises from the delay in the administration of the Act, which might have been avoided by the appointment of local barristers or ths empowering of the Resident Magistrates to carry out the whole of the merely routine business at present performed by tho Judges of the Supreme Court. I would, therefore, suggest that such changes be made in the law as would tend to make its working more expeditious and less expensive, and this may be done now by tho Legislature passing such additional clauses regulating such points concerning which it had previously empowered the Judges to make rules and orders. The Constitution of the Court — The leading principle of any Act should be to distribute a bankruptcy estate as expeditiously and cheaply as possible, and according to the instructions of the creditor's keeping. I most decidedly object to the constitution of an insolvency commission. This would lead to the erection of a separate Court and a staff of officials, all to be supported at the cost of the creditors. In England the Bankruptcy Courts have been bitterly complained against, aad the recent Committee of the House of Commons have exposed scandalous corruption. To remedy the delay arising from the overburdening of the Judges with routine duties, I beg to suggest that the petition may be presented to tho Supremo Court, or to any Resident Magistrate whose order, sequestrating the bankrupt's estate, should vest the same in the Clerk of Court until the first meeting of creditors should be hell for the appointment of a trustee. The Clerk of Court should be empowered, by his assistants to take instant possession of the bankrupt's books, papers, and effects, for safe custody, till a trustee be appointed. An early day should be fixed for the bankrupt's examination, of which duty the Court should be entirely relieved. The examination should be conducted before a Barrister of not less than three years' standing, or a Resident Magistrate. In the realisation of an insolvent estate time is money, and such an immediate examination would be beneficial to tho creditors, although a fee might be payable where it was conducted by a barrister. An early meeting of creditors should take place for the election of a trustee, and when he is appointed bya requisite majority of the Judges, an order confirming the election should, on being registered, vest the whole o" tho bankrupt's estate in the person of the trustee. Who should petition — Any debtor on whom a writ has been served should be able to apply for sequestration, in order to prevent his estate being taken in execution, to tbe prejudice of his creditors generally. The 4th section of the Act should also bo retained. Power should also bo given to any creditor above £50 (or two or more to that amount) to petition where the bankrupt has committed any over-act of insolvency, such as allowing in a writ for a debt being taken iv execution for any debt, calling a meeting of his creditors, suffering any of his real or personal estate to be taken in execution or other legal process, dishonouring a bill and not paying the same within three days after it is due, or in any of the circumstances defined in Section 6 of tho Statute. Provision should be made for sequestration of the estate of a person deceased insolvent, and of a person who has left the Colony in debt. The words, "with intent to defeat or defraud his creditors," in the 6th Section, should be struck out. Where an act can be proved this should be conclusive as to the i ntent. Claims of Creditors — No creditor should be allowed to vote or be ranked unless he has lodged a claim, verified by vouchers where necessary, and with affidavit, and iv every case securities held should be stated and valued, so that t he trustee may claim, if he think proper, the securities, on behoof of the creditors, at the valuation named. I n making up a scheme of ranking, the trustee should give a formal deliverance on each claim, to be intimated to the creditor, who, if dissatisfied, may appeal to the district Judge, where the claim is under £100, and otherwise to the Supreme Court. Bills current and other contingent obligations should be estimated as at the date of sequestration. Discharge — After his examinations the bankrupt may obtain his discharge, with the unanimous consent of his creditors, or, after six months, with the consent of a statutory majority; but, iv the latter case, it should be in the power of any creditor to shew cause (such as fraud, reckless trading, over speculation, irregular book-keeping, delay in balancing beyond a year) why the discharge should not be granted, a discretion

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"DEBTORS AND CREDITORS ACT 1862."