The Dominion. SATURDAY, MAY 20, 1911. LAW AND JUSTICE.

Dominion, Volume 4, Issue 1132, 20 May 1911, Page 4

The Dominion. SATURDAY, MAY 20, 1911. LAW AND JUSTICE.

The Chief Justice, Sir Robert Stout, and Mr. Justice Chapman decided yesterday afternoon that the Hon. T. K. Macdonald, M.L.0., who has been in custody for some days past, shall not go to gaol and pay the penalty of his offending against the law. The ground for this decision was certain medical testimony to the effect that Macdonald's | state of health was. such that ho requires rest and quiet, and that any mental shock may have serious consequences. Before discussing this judgment, it is desirable that we should briefly review tho chief features of this very'remarkable case. The defendant Macdonald was trustee in what is known as the Greenfield Estate, tho beneficiaries in which wore the children of Mr. Robert Mackay Greenfield and Mrs. Mary Ellen Greenfield. Something over four years ago the beneficiaries, being dissatisfied, wished to have Macdonald removed from the trusteeship and took proceedings accordingly. The result was an investigation of accounts, by the Registrar of the Court and a. qualified accountant, winch disced a serious shortage of funds even after generous allowance booh made to Macdonald for his services as trustee. MacDONA.vo made counter-claims aeainst tno. estate, but tho Court held that taerc was a shortage of between £3000 and £1000 in his trust accounts and ordered him to refund the money ._ Every effort that skilled legal opinion could suggest was exercised in his. behalf. All the possible processes of tho law that assist m delay were called into requisition; and the defendant further delayed tho investigations by claiming 'tho exemption from legal proceedings bestowed by law on members of tho Legislature during tho sitting of Parno-mcut. But at tho end of four years the Court, as the result of its invest ip;alionu, ordered, as stated, that it.vjDONALi) should refund a large sum o.f trust moneys which ho had not accounted for. All this time tho proceedings had been conducted in private, ivl acdosald did not refund tho money in accordance with the finding- of tho Court and as a last resort, in erdor<to enforce-payment, tho beneficiaries applied for a writ of attachment—that is to say, applied for an order for bis arrest and .imprisonment. The Court, tilting in.secret, granted.tho application, "but enforcement was delayed by motion ! after-motion, still heard in private, and .eventually the defendant was granted leave to go before the Court of Appeal. The proceeding before tlte Court of Appeal was tho first occasion ou which the case came into open Cour.fr—until that time it had boon a "secrot case/' - as described in tho press. The Court of Appeal upne/.d the writ of attachment, with a slight modification, affecting a small sum, and Macdcjnilp then came before the Supremo Court under arrest. Further delays followed, culminating yesterday in bis discharge from custody on tho ground stated. Wo have on' previous occasions dealt very fully with that phase of the case which'bears on the principle of secret sittings of our Courts <>!■ Justice. We have shown, wo think, the unwisdom of such secret sittings except in special and our views have been generally endorsed by the press of the Dominion. We have contended that in tho case under review, after it reached a certain stage, the Court acted wrongly, if not improperly, in insisting on : secrecy, and wo have not the least doubt that with. I ho full facts before them the public now recognise that'our protests have boon well founded, and in the public interest. Turning now to tho final decision of the Court one cannot fail to be struck first of all with the heavy injustice that may bo done under cover of tho law. In this case of Rose v. Macdonald the . merits of tho action bars been held by the Court throughout to bo entirely on the side ol the plaintiffs. They have claimed nothing moro than they were entitled to and they have pursued the customary legal course In order to facilitate a settlement of their affairs they have, according to the evidence, made heavy sacrifices. They were driven to the Law Courts through the action of their trustee, and they have been put to great inconvenience, have suffered much anxie-ty, and been forced into heavy legal expense through his conduct. At practically every stage of the proceedings they have been compelled to fight for their just rights—rights which the Court has acknowledged and upheld. And with what result 1 At tho end of this long period of litigation they are now told that the law which they have invoked cannot be enforced against the trustee who, according to tho Court finding, has misappropriated their trust funds— that he is protected against the punitive pros?"re which the law proscribes in such cases, because a number of doctors certify that if he woro sent to gaol tho shock may have a serious—possibly fatal was the interpretation of the Chief Justiceeffect on his health. ■ The injured parties who_ have done no wrong must continue to suffer because the Court holds tho opinion that to carry out the punitive provisions of the law might have this sevious effect on the person who the Court has already determined has rendered himself liable to a term of imprisonment. He escapes and the victims of his actions are left lamenting, not only the non-payment of their trust funds, but the necessity for paying out of their own pockets the heavy legal expenses incurred in securing—Justice. So much for the personal side of the matter. Tho most serious aspect of the position, however, is that which concerns the public. Wo do not refer to the fact that the defendant Macdonald is a public man, a member of the Legislature, although

that, of course, cannot be overlooked in any discussion of the exceptional course pursued at times during tho progress of tho action. The secret sittings in the later stages of the trial, and tho special consideration extended to Macdonald when in custody, cannot fail to provoke comment. What we specially refer to, however, is the attitude of the Court in holding that a trustee should be permitted to escape the consequences of his offending on the score of illhealth stated. In passing, we may say that it may bo regarded as an admissjon of weakness on the part of th/j Court that it should have thought it necessary to introduce tho nuestion of what one member of the Bench described as "tho spirit of the ago" in respectof imprisonment for debt. The spirit of the age may be one thing in regard to an ordinary debt—it is quite another thing in regard to tho misappropriation of trust funds. The law provides for the abolition of imprisonment for debt in the ordinary sense of the term, but the law specifically provides for imprisonment as a means of enforcing repayment of misappropriated trust funds. Mr. Justice Edwards made this very clear in the judgment which he delivered on behalf of the Appeal Court in this very case. Incidentally his Honour said:

No doubt tho relation of debtor and creditor does in a sense exist between a trustee who has misappropriated trust funds and those to whom tho misappropriated funds belong, but the relation between the parties is something moro than simple debtor and creditor. And he went on to elaborate this point. In raising this question of imprisonment for debt on the issues submitted to the Court yesterday, their Honours therefore introduced matter calculated to obscure the real point to bo determined. If the law specially provides imprisonment for a class of debt involving misappropriation of trust funds, it is surely, the business of the Court to carry out that law without regard to its own estimate of public sentiment on what is plainly quite a different issue.

But returning to the decision of tho Court discharging the defendant from custody on the ground that his state of health rendered it possible that the effect of imprisonment might produce mental shock or worry and so have serious results on the prisoner, it must strike everyone that this decision opens the door to some very interesting possibilities. It would seem that the old cry of ono law for tho rich and another for the poor is to be supplemented by the cry of one law for tho healthy and another for tho unhealthy. A trustee, for instance, who is unhealthy

and who can get half a dozen doctors to. certify that the shock of imprisonment might have most serious effects on ids health, can, under this decision, practise all the tricks of roguery within his knowledge, and so far as the civil law is concerned escape the punitive means which the law provides for compelling repayment of tho misappropriated funds. As Mr. Blah; put it in the course of his address, the decision of tho Court would mean that in future any member of the public seeking a trustee would not only require to make certain that he was securing an honest man, but he must also ascertain whether .he was a healthy one. Wo would add a further suggestion: beneficiaries proposing to seek civil redress against the muaimpropriations of trust funds by their trustee will savo themselves heavy expense by' first having the defondant trustee medically examined. It is certainly preferable spend a little money at the outset in that direction than to find, after years of worrying and costly litigation, that a Court precedent provides a comfortable shelter for the defaulting, but unhealthy, trustee, and leaves his victims tho empty consolation of a barren judgment. Wo have very little more to add on the present occasion. The disclosures made in the action against the defendant Macdonald have been cf a nature that call for further investigation. It is quite plain that the allegations put forward cannot be left where they arc. The Chief Justice, in the course of his _ judgment yesterday, mado i a passing reference to tho 'possibilities of _ proceedings of another kindboing instituted, and it in the business of the Justice Department, not the business of private individuals, to see that proper inquiry is made in that direction. The suspicion must not bo permitted to exist in the public ■ mind that a member of the Legislature,. possessing powerful friends, is any more immune from tho consequences of his actions than the humblest member of the community.