THE MACDONALD CASE.

Taranaki Daily News, Volume LIII, Issue 317, 2 June 1911, Page 3

THE MACDONALD CASE.

A FRESH PHASE. A rather curious coincidence in connection with the Macdonald case (says t!ie Dominion) is worth recording. The public generally probably are not aware that but for a clause slipped into the Judicature Act of last session the Supreme Court would have had no power to discharge the writ of attachment issued against Macdonald. This clause was hot in the Bill when introduced in the Legislatve Council by Dr. Findlay in October last, but was inserted by someone on the Statutes Revision Committee. The history of this Bill is a little out of the common. It was a short measure of two operative classes when introduced, its main object being to overcome the difficulty which arose in the Nodine case when Mr. Nodine refused to sign the lease, the subject of the dispute, and was sent to gaol for rei fusing to obey the order of the Court. Dr. Findlay explained that the clause was designed to empower the Court to authorise a Court officer to sign in place of a party to an action who refused to obey the order of the Court, as in the Nodine ease. It was promptly pointed out that it was improper to pass legislation affecting proceedings then before the Court, and in consequence the Bill was referred to the Statutes Revision Committee. Then a very curious thing happened. The Bill came back with a new and very proper proviso excluding any litigation then before the Court from the provisions of what we shall call the Nodine section; but an entirely new cluase had been added, as stated, extending the power of the Court in respect of writs of attachment. The reason given for adding! this new clause was that it was desir-j able to bring the law of New Zealand I into conformity with that of England. It is a little 'curious that this difference in the law should have existed for over 30 years without comment and that the discovery should then be made so opportunely for a member of the legislative body which deemed it advisable to make the change. It is also a rather strange coincidence that the first person to benefit under the change in the law should be a member of the Legislative Council which brought it about. But what strikes us as equally remarkable is that the Legislative Council should consider it necessary in the case of the Nodine clause to add a proviso excluding litigation then before the Court, wheroas in clause 1, t',<c clause bearing on the Macdonald case, no such proviso was deemed necessary. Was this due to the secrecy with which the case had been shrouded? Anyway, the result of this omission was that the plaintiffs in the action commenced their suit knowing that they had power to enforce payment for a breach of trust by obtaining an order for the imprisonment of the defendant trustee. During the progress of the action, and just as the fruit of several years' litigation seemed to be within their reach, nnd the Court had ordered payment of the misappropriated trust funds, the law was amended and the punitive provisions modified to their detriment—their strongest weapon was taken from them. Naturally the question will be asked who prompted the amendment of the law last session which enabled the defendant Macdonald to escape ? Without that amendment the Court would appear to have had no option in the matter—there was no alternative; either payment had to be made or imprisonment suffered under the writ of attachment. ,