New Zealand Times (PUBLISHED DAILY.) FRIDAY, APRIL 2O, 1877.

New Zealand Times, Volume XXXII, Issue 5015, 20 April 1877, Page 2

New Zealand Times (PUBLISHED DAILY.) FRIDAY, APRIL 20, 1877.

The question ivliether the amount of a life assurance policy Avent on tho death of tho assured to his Avifo and family or to his creditors Avas raised in the case of Hammond v. tho Public Trustee, Avhich was before tho Supreme Court in banco on the 13th inst. Into tho legal or equitable merits of the case avo do not propose to enter, as the matter is still pending ; but without infringing our rule not to comment on a case while it is before the Court, avo may point out lioav very undesirable it is that any doubt should rest on the construction of the Life Assurance Companies Act, 1873. Had the language of .that statute been clear there could have been no dispute upon the point at issue ; and this furnishes another instance of the loose way in which our Acts are draivn. This particular Act is, Ave believe, an alter-for- the- worse version of an American or Canadian statute, and comes to us from New South Wales. Who was tho draughtsman that placed it on our statute-book we are not aware, nor Avhether he simply drew it, with the assistance of the paste-pot and scissors, from the Australian Act, as did a certain Warden with a Goldfields Act a few years ago. Perhaps it is another instance of the interminable and costly bungles caused by verbal amendments hurriedly made in committee by non-professional members ; but Avhatever may have been the process by Avhich it was manufactured, it is evidently imperfect on a point of very great importance, not only to tho parties immediately concerned, but also to the general community. We believe we are correct in saying that under the Government Life Assurance system a man can insure for the benefit of his wife and family in such a way that it acts like a settlement for their separate use and benefit, and if such is the fact under that system, so we think it ought to be under every other. It is every man’s duty to provide, if possible, that his wife and children shall not he left penniless at his death. To the great majority of people, especially those with fixed incomes, the easiest, if not the only way of attaining this object, is by means of life assurance, and it should be open to all to insure in any oflice they please, with the same feeling of security that the policy shall have the like effect as a settlement. We do not object to restrictions with a A’ioiv to prevent fraud, such as that the policy must have endured a certain time, and be of a certain amount before it is protected, as is provided by the Act of 1873 ; but we do say that there ought to be no doubt whatever upon the point whether a policy under the Act can be so protected, and that the statute, if necessary, should be amended so that the important question which has arisen in the case of Hammond v. the Public Trustee shall not crop up again. This is not, Ave imagine, the only instance in Avhich such a point may arise. There are probably hundreds of persons who have effected moderate insurances on their lives for the benefit of their wives and families, in the belief that the sums insured are protected against all other claims, but so long as this fancied security may be jeopardised by the construction of an Act, obviously badly draAvn and loosely worded, a good deal of uneasiness may not unnaturally bo felt in many a household until the matter is set at rest either by law or by action of the Legislature, if necessary. In the case referred to the insured effected a policy of MOO on his own life, and it had endured more than five years at the time of his death. He died without making a will, which, however, avo apprehend would make no difference under tho circumstances, leaving a Avidow and five children, and debts to the extent of more than £2OOO. The question now before the Court is, are the widow and children or the creditors to get the money ? a question of the utmost consequence, and which never could have arisen if the Act referred to had been draivn more intelligibly. We have heard of the seemingly large sum of £4OOO having been paid to a Parliamentary draughtsman in England for drawing one single Act of Parliament, an Act relating to fines and recoveries, if Ave remember rightly; and the work has been considered cheap at the price, because it is so Avell done that no doubts can arise as to its construction, and it thus forms a notable exception to the general rule that no Act can be drawn that a coach and horses cannot be driven through it. Be this as it may, there can be little hesitation in saying that ever so many coaches and horses can be driven through the statutes of New Zealand, at whose birth we have been told “ the gods of hocus-pocus, hug-ger-mugger, and higgledy-piggledy presided.” Thecodificationand amendment of the existing statute IaAV is an undertaking the necessity for which has been often pointed out, and Avhich ultimately the Legislature will have to take in hand. Possibly there Avill be some discussion next session as to the appointing a commission on the subject, as both tho bench and bar, as well as the public at large, are alive to the fact of how much a reform is needed in this particular. But should time and opportunity not occur for tho purpose this year, we hope at all events, that in the matter of the Life Assurance Act, 1873, such amendment Avill be made in the clause affecting the protection of policies as shall at once and for ever set at rest the point now in dispute.

We think any person on reading the evidence in the case Irvine v. Brooke, published on Wednesday, will not only agree with the verdict arrived at, but wonder considerably how such a case should have got into Court at all. It is popularly supposed that tho costa of a Supreme Court action are so heavy that a man must bo possessed of some means if he can make his bow before the Judge, and it has been a favorite argument against the reduction of costs to say that thereby frivolous and unnecessary litigation would be encouraged, but this appears to bo no longer the case. In the present instance plaintiff, according to his own admission, is not a rich man. Since he was unable to pay the rent for a small office, and has had to abandon it for that reason, we may safely conclude that tho defendant cannot hope that even his ordinary costs of defence will be paid. The plaintiff’s own evidence shows that neither at tho commencement nor during any part of tho procedings had ho a prospect of being able to pay costs in the event of his case failing. Far bo it from us to urge that the courts of justice should be closed to the poorest man in the land if ho have a wrong to he redressed,-but nevertheless wo think it would be much to be regretted if cases such as that of Irvine v. Brooke became of frequent occurrence. A man should not be dragged away from his home in another colony to defend, and a

Judge and twelve business men compelled to waste a ivhole day, in trying an action in which the plaintiff can adduce no better evidence in support of his claim than was adduced in the case Ave are now commenting on. The jury by its finding emphatically declared its opinion that from beginningto end there wasrfota single fact brought out which could justify plaintiff’s appearance in court, even supposing the whole of his own evidence Avere believed. We think that a change in the IaAV is necessary, so as to prevent a recurrence of such a case of hardship. Before bringing an action which cannot fail to entail A’ory large expense upon tho person against Avhom it is brought, the law should provide for the giving of security for the costs of the defendant in case of failure to make good tho claims advanced. It should not suffice that tho plaintiff should be able to induce a solicitor to take his case up ; but that ho should be able, in case of failure, to pay in some measure at least for the expenses which he may cause to the person against whom he has brought his action. As tho law at present stands, any man possessed of sufficient means to employ a solicitor seems to bo able to institute an action Avhich Avill certainly, if he fail and be unable to pay the costs of the defendant, entail upon the latter expenses five times greater than his own.