LEGISLATIVE COUNCIL.

New Zealand Mail, Issue 32, 2 September 1871, Page 8

LEGISLATIVE COUNCIL.

Tuesday, Aug-. 29. The Hon. the Speaker took the chair at two o'clock. HANSAED. A letter from Mr Thomas M'Kenzie, making an offer to print the " Hansard" reports, was read by the Hon the Speakee. The Hon Mr WATERHOUSE desired to move that the letter be referred to the Debates Printing Committee, but the Speaker ruled that the regular course would be for the communication to come by message from the other House. PETITIONS. Tbe Hon Mr MANTELL presented a petition from 610 inhabitants of Wellington, on the Bubjeot of the Reclaimed Lands Bill.

The Hon Mr WATERHOUSE drew attention to a discrepancy in the wording of the petition. In one part it was stated that the petition was that of ratepayers and others, •while in another part the petitioners were described positively as ratepayers. He hac heard that not more than a third of those who signed it were ratepayers, and, as a matter of privilege, he suggested that inquiry as to the signatures Bhould be made by the Committee. He gave notice of a motion to the effect that such inquiry should be made, with the view of ascertaining who were ratepayers and who were not. TIMBER POR RAILWAY PURPOSES. The Hon Mr PETERS asked the Minister of Justice, if the Government intend taking steps to ascertain what description of timber is best adapted for railway purposes, and whether they intend putting a stop to the use of timber of inferior quality on railways now in course of formation. He considered it the more necessary to call attention to this subject in consequence of the prospect of the colony entering into large railway works. He quoted the case of a contract in Canterbury, in which a large quantity of black birch had been selected, and his experience of that timber was that it did not last four years, bnt in other parts the same wood was stated to last for a considerable period. The Hon. Mr SEWELL read, not suffici--1 ently distinctly to be heard in the gallery, a report of the chief engineer, Mr Blaekett, upon the timber which it was determined to adopt, according to circumstances, in the construction of railway works. PRIVATE PETITIONS. On the motion of the Hon. Mr Sewell, it was agreed that the select committee on standing orders should forthwith prepare a message to the House of Representatives in accordance with their report on private bills. The Council adjourned for a quarter of an hour, when the message was brought up, and notice was given, for next sitting, of its adoption and transmission to the House of Representatives. INSOLVENCY BILL. The. Hon Mr SEWELL moved the second reading of the Insolvency Bill. The existing law, he said, was not satisfactory to the country, nor was he sanguine that any measure on the subject would prove to be satisfactory. The subject was so fraught with difficulties that he could well believe that even the wisest measure would fail in meeting the necessities of the two parties, debtors and creditors. This bill was now, however, proposed as a substitute for the law as it stood, and it had one recommendable feature, inasmuch as, while the existing act consisted of 348 clauses, the proposed bill did not contain more than 180, so that the bulk of law was reduced by nearly one-half —a reduction which would have the effect of simplifying the law and making it more easily operative. The particular defects which had been found in the existing law might have been repealed by amendment, but the continual amendment of laws was found to be exceedingly inconvenient, and the object of the Government, as well as the wish of the Legislature, had been that the law should be consolidated. They therefore determined to present a measure which would not only be an amendment, but a bill which would consolidate and embody in one measure the whole law on the subject. In framing the measure they had to determine whether they should frame one of their own invention, or adopt the measures of other legislatures, and they thought the latter to be both the wisest and the simplest course. They had adopted the legislation of Victoria, and it was framed on an act of the Imperial Legislature, passed in 1869. The Imperial Act, the Victorian Act, and this present measure would, indeed, be found to substantially agree. The general structure of the scheme would be found to be altogether different from the present law, and he thought it would be found to constitute a more convenient arrangement of the various subject matters of tbe act. He would not then refer to details, believing that the measure would be best dealt with by a select committee, but would direct attention simply to some of its main features and leading alterations. The first alteration of importance was in the constitution of the bankruptcy courts. At present jurisdiction in bankruptcy was exercised either by the supreme or district courts. It was an alternative jurisdiction, and great practical inconvenience had been the result. It was obvious that the jurisdiction should be carefully defined, and this bill proposed so far to alter the law, first of all by giving the jurisdiction in bankruptcy to district courts where there are district courts, and where there are no district courts to make commissioners' districts, and where no provision is made for either district or commissioners' courts, the Supreme Court should exercise its ordinary jurisdiction. That was one alteration, and he thought it was a most important point affecting the proper working of the law, its satisfactory working depending more on the tribunals than upon administrative details. In England there was a special court of bankruptcy, and in Victoria the courts were presided over by judges having special qualifications. It was open to question Whether a similar practice should not be adopted here, but that involved expense and special difficulties arising out of the constitution of the colony. The next important point in which a substantive change of the law was to be made was what were called voluntary sequestrations. In that respect the present law was found to be exceedingly unsatisfactory. Under the present law a person who might be harassed by creditors might present a petition to the court j the effect of that petition was to put in motion the provisional trustee, who was a mere official, and who was not likely to take

a very active part in securing the estate ; and the petition remained, as it were, dormant. At the expiration of ten days any creditor might found proceedings on this voluntary petition, and make the person a bankrupt. This, it would be seen, was a dilatory process, and the only effect was to provide means for the person who sought time to avoid the action of his creditors. The present bill would enable any person who found himself unable to pay his debts to present a petition to the court, setting forth the circumstances, and the court might immediately order a sequestration of the estate—might immediately set in motion the powers of the act, and thereupon would follow all the consequences applicable to an ordinary bankruptcy. The assignee would administer the estate, and secure for the benefit of the creditors the insolvent's assets. He thought this would be found to be a very considerable improvement upon the present law. There was nothing in the general principle as to compulsory sequestration, which materially differed from the present practice. There was just one point. In the administration of a bankrupt's estate, the present law was that the provisional trustee was the general official administrator. At present he was a very ineffective officer, and the arrangement had generally been found unsatisfactory. In compliance with the suggestions of the Chambers of Commerce, it was the intention to appoint as official assignees persons who would undertake the ad interim assignation of bankrupt's estates. The existing law depended upon the interference of the creditors themselves, and practically it was found that they would not take any great trouble in these matters. Bankrupt estates were often small in amount, and any particular creditor had a limited interest in the estate. The system had been found to be unsatisfactory, and in lieu of it it was proposed to appoint official assignees. He would be the practical administrator and winder-up of estates, except in cases where creditors themselves agreed to the appointment of trustees. That, he thought, would be found to be a practical improvement upon the present law. There was another important change, with regard to 'what was termed the close of a bankruptcy. At present a bankrupt might obtain his certificate on certain conditions prescribed. These conditions did not really secure every justice to the creditors. The present act adopted what had been introduced in the English and Victorian Acts, making it a condition that before any person gets his certificate, he must pay 10s in the pound, and under some special circumstances he may be relieved from that, creditors being themselves the judges. Following that, there was the status of the undischarged debtor. A.t present, in the case of a man who had not paid ten shillings in the pound —who had not obtained a certificate—his after acquired property might be made available for his debts, but it could be only on application to the Court, and for the benefit of all his creditors; but usually no person troubled himself to secure the broken fragments of an estate. The proposed law would place the uncertificated bankrupt who had not paid ten shillings in a different position. First of all, a period of three years would be allowed him, during which, as it were, he would not be liable to be molested. At the expiration of' that time any creditor who had not received ten shilling in the pound could deal with the debt in the nature of a judgment debt. He might apply to the court, and the court might, in its discretion, limiting the extent to which the judgment may be enforced, give to the unpaid creditors, who would then be as judgment creditors, an order against the estate. He could not but think that this principle would have a very salutary effect as regarded the results of the administration of bankruptcy. Another change made by the bill had reference to deeds of arrangement. Very great abuse took place under the present law. The way in which a man effected a deed of arrangement now was to receive the assent of a certain number of creditors. This led to a practice which by no means advanced the interests of the general body of creditors. The law which was now proposed provided that, instead of this arrangement, it should be done by resolutions at a meeting of creditors. Due provision was made for those meetings of creditors, and the resolution of creditors adopted at these meetings would have all the effect of deeds of arrangement. There was this difference between the bill and the practice in England, that in England the resolution of creditors agreeing to accept an arrangement was determined by a certain proportion of creditors —three-fourths in number and value of the creditors assembled at the meeting. This might apply in England, where creditors were generally resident in the country; but in Victoria an alteration had been made by which it was required that the number should be a majority of the whole body of creditors. He thought he had pointed out the main points in which the bill would be found to vary from the law as it at present stood, and, if it were then read a second time, he would take the sense of the Council as to whether it should be referred to a select committee to act in conjunction with a committee of the other House.

The Hon. Mr WATERHOUSE agreed with Mr Sewell that it was scarcely likely that any legislation on bankruptcy would prove permanently satisfactory. He had seen the rise and fall of several measures on the subject, and he believed that a great deal more depended upon the manner of administering the law than upon the particular measure passed. He believed that it would bo much better to have a distinct court for the administration of insolvency laws. Still he agreed that the creation of such courts would be attended with such great expense that it would be necessary to give the proposed or existing courts a further trial. At the same time he thought there was a mistake in allowing so

many courts to deal with insolvency. He thought it would be better if the District Courts were limited in the North Island to two, and in the Middle Island to three. He deprecated the pressure which-was being brought; upon the Government to multiply courts and their sittings throughout the colony. Another objection in the provision of the bill was that by which power of appeal was given against the decisions of the Commissioners of Insolvency. He feared that provision would have an injurious influence, nnless the power of appeal were confined to creditors among themselves as to questions which might arise between them or between them and the Commissioner. The debtor should be made to feel that he was absolutely and thoroughly in the hands of the Pourt. Other features of the bill to which he took objection were the making of certain acts on the part of the court discretionary instead of imperative, and the absence of powers to insist upon estates, under certain circumstances, being wound up in court. He thought it also desirable that estates should be wound up within some specified period, or that provision should be made for the creditors resolving upon the specifying of a period for that purpose. He did not know how far the bill was calculated to effect the Natives, who had found out the advantage of their laws, but he thought the Native race should be bound to abide either by one law or another, and not be permitted to take advantage of either at discretion. In consideration of the late period at which the session had commenced, and the probable necessity for members leaving early, he preferred the consideration of the bill at once in open committee, instead of by a select committee. The Hon. Dr Buchanan, the Hon. Colonel Eussell, and the Hon. Mr Paterson spoke in favor of the bill being dealt with by a select committee ; and Colonel Russell, in his remarks, suggested that, while provision should be made by which Natives might not take undue advantage of the laws, they should be protected from the execution of law against them in such a form as might lead to trouble and complications. The Hon Captain FEASER drew attention to what he considered to be some inaccuracies in certain clauses, and he objected to the clause by which a debtor could be subjected to hard labor under the present prison arrangements of the colony. There was no provision for labor inside prison walls such as existed in Pentridge, and he did not imagine the Government meant to attire debtors in prison costume, and put them to work upon the road.

The Hon Mr SEWELL, in briefly replying, referred to an analysis of returns of the working of past Bankruptcy Acts. The returns were published in July, 1870, and the results during the year previous were these— There were £697,000 of debts proved against bankrupt estates. The debts realised were £41,379 ; law expenses £2,950 ; miscellaneous expenses £3,145; trustees' commission £2,099 ; dividends paid and unpaid, £12,522} expenses £2,803 ; balance remaining in the hands of trustees £1,324, On an average the assets realised, compared with the debts proved, might be aboutj one shilling and sixpence in the pound, and the dividend which ought to have reached the hands of creditors would be about fourpence in the pound. He thought that this was an extremely unsatisfactory state of things. The bill was referred to a Select Committee, to report in ten days, and the Council went into committee on the Millers and Bakera Bill, Wednesday, August 30. The Hon. the Speaker took the chair at two o'clock. NATIVE LANDS ACT. The Hon Mr MANTELL asked whether during the recess the Government has caused any inquiry to be made as %o the working of the Native Lands Act, and whether any reports have been received on the subject ? The Hon Mr SEWELL was understood to say that the Government had made inquiries as to the working of the act, and had received one or more reports on the subject. Colonel Haultain had made an elaborate report, which was yet under consideration, and either the report itself, or the report and its appendices, would be laid upon the table on an early day. RECLAIMED LAND. The Hon Mr MANTELL moved that the petition of ratepayers and inhabitants of the city of Wellington, presented on the 29th instant, be printed. The motion was agreed to. The Hon Mr WATERHOUSE moved that it be an instruction to the Petitions Committee to report to what extent the signatures attached to a petition presented from certain persons setting themselves forth as ratepayers of the city of Wellington, are in accordance with such statement. He believed that 610 would represent half the number of ratepayers in the city of Wellington. It was important to know how far the intent of the legislation was in accordance with the opinion of the ratepayers. Having been asked to conduct the bill in question through the pouse, he would hesitate or even decline to do so if it were against the opinions of such a proportion of ratepayers. But he had heard that more than half of the signatures were of those who were simply inhabitants of the city without being on the ratepayers' list. The Hon Mr MANTELL had been informed that the preparers of the petition, and those who had obtained signatures to it, took the wider view that it was to be signed by ratepayers and inhabitants, and perhaps not more than half the signatures attached to the petition were those of ratepayers. It was held that those who might not be ratepayers were quite entitled to sign petitions in defence of the city against taxation, and, if it did happen that there was no alternative word in

the petition, it was an oversight, and to be regretted that it had occurred. The motion was agreed to. THE UNIVERSITY ACT. The Hon Mr SEWELL moved that a committeo be appointed to consider and report as to the proceedings taken in pursuance of the New Zealand University Act, 1870, with a view to recommend such further steps as may appear to them expedient, in order to give effect to the intentions of the Legislature; with power to call for persons, papers, and records, and to bring up their report this day fortnight; the committee to have power to conduct its proceedings in conjunction with any committee of the House of Bepresentatives on the like subject, and to make either a joint or separate report; the committee to consist of the Hon the Speaker, the Hon Dr Buchanan, the Hon Dr Grace, the Hon Mr Stokes, the Hon Mr Waterhouse, and the mover. He explained at some length the circumstances under which the council of the university had failed to meet or to confer with the council of the Otago University. In the present position of affairs—the New Zealand University not having established itself in any given locality, and the whole matter requiring to be regulated—it was desirable that some further steps should be taken, and he hoped that something satisfactory would be done in the way of solving the" present difficulties. He gave notice that he would move the addition of the name of Mr Scotland to the list of the committee. The Hon Mr M'LEAN did not wish to offer objections to the* motion, but thought the committee would be more fairly selected if the province of Otago, or even if the council of the University, were more represented in its composition. The Hon Mr WATERHOUSE proposed the selection of the committee by ballot, but subsequently withdrew the motion, and, after explanations from the Hon Mr Sewell and the Speaker as to the selection of the committee, the motion was agreed to. DECEASED WIFE'S SISTER MARRIAGE BILL. The Hon Mr WATERHOUSE, in moving the second reading of this bill, said he should not have brought it before the House but for action elsewhere, by which the question had been complicated. He referred to the action taken by the Imperial Government in sanctioning an act of a similar character. He could not but think that there should be but one law in reference to marriage throughout the British dominions, and he would not have taken the action he did had it not been that the Imperial legislature had sanctioned a measure similar to that which was proposed in another colony. The effect of that would be to encourage the committal of illegalities which might be attended with serious consequences to the persons themselves, and to their families." According to the decision of the Privy Council of England, marriages with a deceased wife's Bister were only valid in countries where the law prevailed, and where persons so married were bona fide residents of the country. Marriages with a deceased wife's sister, provided the parties were bona fide residents of the country, would therefore be valid throughout the British dominions, but if persons should go from this colony to that colony to avail themselves of the law, these marriages, being between persons who were not bona-fide residents, would be altogether invalid. An important decision had been given by the Privy Council in this matter. By parties availing themselves of the law, very serious complications might arise, and the very law in South Australia might prove a trap in which persons might be so involved that the legitimacy of the marriage and the children might be called in question. It/was undoubtedly extremely desirable that there should be one law on the object as far as possible; and in order that they might take the steps towards uniformity, he was induced to bring in this bill. The hon. member continued by quoting instances of law, precedent, and usage in connection with such marriages, and referred to the objections based on religious and social considerations urged against them. He urged that arguments adduced against them should be positive, not theoretical, and that it should be shown, if it could be shown, that they would be a wrong to society. He held that the legislation on the subject was repugnant to the public sentiment, not in accordance with it, and he hoped it would be so altered that it would no longer debar persons from entering into social arrangements which they deemed proper, and upon which a large proportion of their fellow-subjects looked with approval. The Hon. Colonel BRETT seconded the motion, and warmly concurred with the views expressed by the hon. member. The Hon Dr BUCHANAN opposed the bill, and moved that it be read that day six months. The Hon Mr PATERSON seconded the amendment. The bill was supported by the Hon J. M'Lean, and opposed by the Hon Capt Eraser, the Hon Dr Stokes, the Hon Dr Grace, and the Hon. Mr Sewell. On a division the motion was carried by 11 against 10, and the bill was read a second time. Thursday, August 31. The Hon. the Speaker took the chair at two o'clock. NEW ZEALAND UNIVERSITY. The Hon. Mr SEWELL, in reply to the Hon. Captain Eraser, stated that " the correspondence with certain members who expressed their regret and inability to act upon the Council of the New Zealand University," was already in type, and that there were no objections to lay it on the table. DUNEDIN AND PORT CHALMERS RAILWAY. The Dunedin and Port Chalmers Railway Bill was road a second time and committed. In committee, the Hon. Colone ) Russell drew attention to the circumstanoe o the bill

being one to validate a provincial act, which was contrary to a resolution previously passed by the Council. After some discussion, he moved that the Chairman report progress, without asking leave to sit again. The Chairman (Major Richmond) explained the effect of such a motion, and the mover was pressed to withdraw the motion, but, as a record, he preferred a division. On a division the motion was negatived by 15 to 3. The several clauses were then adopted, and progress was reported. The other orders of the day were the second reading of the Intestate Estates Bill, and the consideration, in committee, of the Evidence Euvther Amendment Bill, and the Contractors Debts Bill.